The Ostensibly Pro-Life Act of IVF Is Now Endangered

Without Roe, trying to have children through in vitro fertilization could come with risks for patients and fertility clinics.

By Kylie Cheung | June 25, 2022 | 5:55pm

Abortion Politics

The Ostensibly Pro-Life Act of IVF Is Now Endangered

Illustration: KTSDESIGN

In vitro fertilization, or IVF, begins when an egg meets sperm on a petri dish in a lab. Days after fertilization, the fertilized eggs, now teeny embryos, are frozen for later use, or inserted into a needle and placed inside the uterus of the person who wants to have a baby. If the embryo implants into the uterine wall, pregnancy occurs, and the procedure is a success—but the chance of IVF being successful stands at just 50 percent, and that’s only when you’re 35 or under. Fertility experts often refer to IVF as a numbers game requiring multiple attempts, and naturally, multiple embryos. Playing the game, so to speak, is among the most effective forms of assisted reproductive technology, but it can also be a grueling, demoralizing process—especially for couples or individuals who may already be grappling with the mental toll of long-term fertility struggles.

Most Popular

Now, in a post-Roe v. Wade world, a failed IVF cycle could come with more than disappointment. It could carry criminal risk.

Roe was brutally overturned in the Supreme Court’s Dobbs v. Jackson Women’s Health decision Friday. Even before the ruling, medical experts expressed concern that state abortion bans could restrict IVF access, and legal experts wondered if IVF providers and patients could become exposed to criminal charges or other legal repercussions. If a state’s abortion ban implicitly—or explicitly—recognizes embryos as children, as some do, routine embryo disposal in the IVF process and failed IVF cycles could even be prosecuted as manslaughter. With Roe reversed, as many as 34 states could ban or restrict IVF, according to research by the health care startup Power. These states include the 22 with pre-Roe abortion bans or trigger bans, as well as 12 other states that don’t explicitly guarantee the right to an abortion in their state constitutions, a spokesperson for Power explained.

Elizabeth Nash, the principal policy analyst for state issues at Guttmacher Institute, told Jezebel that IVF will be “most at risk” in states with abortion bans that explicitly include “life begins at conception” language, because “this language defines ‘child’ as starting at fertilization, and it doesn’t look like any of [the bans] specifically have exceptions for IVF.” According to Nash’s research, five states with trigger bans that include this language are Arkansas, Kentucky, Louisiana, Missouri, and Texas. As of this writing, nine states—Alabama, Arkansas, Kentucky, Louisiana, Missouri, Oklahoma, South Dakota, Texas, and Utah—are enforcing their trigger bans.

Photo:hoto by Carolyn Van Houten/The Washington Post (Getty Images)

On top of these abortion bans, Nash noted that nearly 40 states have fetal homicide laws that accord embryos and fetuses personhood by recognizing them as homicide victims if a pregnant person is killed or harmed, and loses their pregnancy. These laws were originally created to address the issue of homicide as the leading cause of death for pregnant people but have been co-opted by anti-abortion activists and prosecutors to humanize fetuses and cast pregnant people as murderers. Between 2006 and 2020, nearly 1,300 pregnant people—a disproportionate number of them people of color—faced criminal charges for their pregnancy outcomes, in cases often involving fetal homicide laws. Notably, several pregnant people faced criminal charges, including manslaughter, following stillbirth.

Through “life begins at conception” language, fetal homicide laws, and abortion bans—all of which dangerously widen the legal definition of a child in various ways—different states in different ways open up loopholes for IVF to be restricted or banned. As such, IVF providers are reporting confusion about what abortion bans mean for their services. According to the Wall Street Journal, some patients are asking providers to move embryos to states that protect abortion rights, while providers are urging patients to demand legislation that explicitly protects IVF. What remains to be seen is whether anti-abortion legislators or prosecutors will try to take advantage of these loopholes and turn a close eye on IVF. Or, if IVF providers try to head them off at the pass by limiting IVF treatments themselves.

More than a decade ago, the potential impact of fetal personhood rights on IVF access in the U.S. was clear. Dana Sussman, deputy executive director of National Advocates for Pregnant Women (NAPW), told Jezebel that when Mississippi voted on a 2011 ballot measure to grant full personhood rights to fetuses and embryos, abortion opponents who supported IVF and abortion rights supporters formed an “unlikely alliance” to defeat the measure. But Sussman worries Mississippi and states with similar anti-abortion laws “have shifted politically a lot since then.” And today, she added, “There’s a lack of clarity as to what these [trigger and pre-Roe] bans that say ‘life begins at conception’ actually mean in practice, and that’s incredibly concerning with regard to IVF.” That lack of clarity hit Ireland in the years abortion was banned there: As doctors struggled to ascertain which practices were illegal with regard to disposing unused embryos, IVF remained perpetually in limbo.

Contrary to the supposedly pro-family values of the anti-abortion movement, the decimation of access to IVF treatments would be devastating for people who are trying to build their families—Pew Research Center found that one-third of Americans reported they or someone they knew used some type of fertility treatment. Yet, IVF and all other fertility-related services—blood work, semen exams, the full range of assisted reproductive technologies—could become substantially less available if IVF providers preemptively stop IVF out of fear they would be toeing legal lines: “IVF is such a big source of revenue for many of these [fertility] clinics, that if you prevent them from offering IVF, many of them probably can’t exist,” Bask Gill, a co-founder of Power, told Jezebel. “There’s potential for this to lead to a lot fewer fertility clinics, making it far harder for people to access fertility treatments.”

There’s a lack of clarity as to what these bans that say ‘life begins at conception’ actually mean in practice.

Of course, loss of revenue isn’t the only risk factor—in many states in a post-Roe America, seeking or providing IVF could lead to sharp penalties, including fines, lawsuits, and even criminal charges, experts at the IVF provider ARC Fertility have long warned. “If a state bans abortion, IVF providers will look very carefully at those laws to see if they can meet their patients’ needs, and follow the law,” said Nash.

Beyond “life begins at conception” language, abortion bans, and fetal homicide laws, states have been proposing or passing bills to accord embryos and fetuses legal personhood status for years. A recent Texas bill would allow pregnant people to drive in the carpool lane, recognizing their unborn fetus as a living passenger. Congressional Republicans also introduced a child tax credit for pregnant people, recognizing embryos and fetuses as children, and several states have voted on ballot measures regarding fetal personhood rights in recent elections.

NAPW’s research has found numerous legal cases of pregnant people being barred from out-of-state travel because of partners’ custody claims over their fetus—some cases went so far as to regard this travel as “kidnapping.” Other legal cases have debated the merits of identifying individuals’ birthdays as the date they were conceived, instead of the date of their birth—though, Sussman noted, these cases were entirely irrelevant to IVF, and arose from individuals trying to meet the minimum age requirement to run for office. The child welfare system, which often singles out and persecutes Black families and families of color, has “found people to be ‘neglectful’ or ‘abusive’ parents before there’s even an actual baby,” Sussman said, because of their actions during pregnancy.

Comical as it may seem, any form of legal recognition that life begins at conception has consistently led to dangerous outcomes for pregnant people. After all, this legal definition could lend to a number of forms of contraception—including some birth control pills, Plan B, or IUDs—being banned, following wildly deceptive anti-abortion arguments that these methods induce so-called “early abortions” by preventing a fertilized egg from implanting in the uterus. (This is bunk, medically speaking.)

It’s this redefining of who, or rather what, is a child that places access to IVF in danger in a post-Roe America—a uniquely cruel outcome for people with fertility struggles. “IVF is already a really difficult, emotionally challenging experience,” Sussman said. “To have to be put through extra procedures to avoid criminalization or legal repercussions, knowing that of course, those embryos aren’t going to survive—it just seems like yet another layer of dehumanization of the woman or pregnant person.”

Back in March, at Senate hearings for the nomination of Judge Ketanji Brown Jackson to the Supreme Court, several Republican senators asked her when she believes life begins, revealing what we’ve long known: Anti-abortion lawmakers’ true end goal extends beyond banning abortion, to establishing “equal protection” for fertilized eggs—at the expense of the humanity of the person carrying them.

The threats to IVF and other fertility treatments posed by the fall of Roe speak to the anti-abortion movement’s overall, enduring harm on pregnant people and families, despite its insidious “family values” rhetoric, Sussman said. “This is not about ensuring fetal health or welfare at all. If it was, we’d be supporting mental health care and drug treatment in a non-judgmental, culturally responsive way for pregnant people, advocating for approaches that actually improve maternal and fetal health outcomes.”

For people who want to have kids, post-Roe barriers and penalties could soon deny them the families they’re trying to build, and even criminalize them for seeking IVF. This is why the reproductive justice framework created by Black women has always demanded more than the right to abortion alone, but rather, all of the rights and resources necessary to parent or not parent in safe, healthy communities. The anti-abortion movement, in contrast, has always disdained children and families beneath the surface of its flowery “pro-life” rhetoric. As IVF patients are left fearing what the future holds, that disdain is on full display.