After battling with infertility for several years, Melissa says she finally saw a glimmer of hope through in vitro fertilization. She and her husband started working with a fertility center in Grand Rapids, Mich., in March 2021 and have produced and frozen several embryos.
Melissa hopes to eventually get pregnant for the second time this winter. But when the U.S. Supreme Court’s ruling overturning Roe v. Wade came down, she started to worry.
“I’m sitting here desperate for babies — desperate,” she says. “And this can seriously impact whether I can grow my family, whether I can afford to, whether I want to risk it.”
NPR has agreed to use only her first name because she’s concerned about potential retaliation from abortion opponents.
Melissa’s fear is that a Michigan law banning abortion (which is currently in legal limbo) could potentially put fertility treatments, such as in vitro fertilization, in jeopardy. People in other states with abortion bans or pending bans have similar worries.
Their concern could be very real, says Judith Daar, a law professor at Northern Kentucky University with expertise in reproductive health.
She says when the Supreme Court’s ruling overturning Roe v. Wade made reference to “unborn human beings,” it indirectly raised the issue of IVF. And it will be up to state legislatures to determine how abortion laws affect fertility treatments.
“If the legislature does view the unborn human life at its earliest moments as something worthy of protection over other interests, including the interest of patients and forming their families, then laws could move forward that are restrictive to in vitro fertilization,” she says.
Personhood rights for embryos?
During IVF, doctors collect eggs from a patient’s ovaries and fertilize them with sperm in a lab to create embryos. They either transfer those embryos to a uterus, discard them or freeze them to be used later.
A handful of state abortion bans define life as beginning at fertilization, though they don’t specifically target the process of IVF. Other states are attempting to pass legislation that would grant embryos, fetuses and fertilized eggs personhood rights and in some cases constitutional rights.
Such laws would “pose a concrete threat to the routine practice of IVF,” says Daar. The concern is that these laws deem a frozen embryo a human life and that doing things like genetic testing on it during the IVF process, or discarding it, could become illegal.
“If an early embryo is deemed a person for purposes of legal rights and protections, any action short of transfer to the uterus could be seen as violating its right to life under these new laws,” Daar says.
Michigan’s 1931 law banning abortion is paused as the courts consider a lawsuit that Gov. Gretchen Whitmer filed in the Michigan Supreme Court challenging the law’s constitutionality. Until the courts decide whether the law is valid, abortions continue to be legal in Michigan.
But if the law is upheld and goes into effect, there is uncertainty about whether health workers in IVF clinics could face criminal charges for discarding embryos.
Michigan Attorney General Dana Nessel said she fears that the 1931 law could impact IVF practice because of its ambiguity.
“If you’re going to say that some of these are going to be unsuitable to be implanted — we’re going to dispose of them,” Nessel asked in a news conference last month, “are you now committing a felony offense by doing so?”
In other states with strict abortion bans like Alabama and Oklahoma, officials have clarified that their current abortions bans will not impact IVF treatments.
Contemplating tough choices
With so much uncertainty over the law, patients like Melissa fear they could end up in a situation with few good options.
“What is the clinic going to have to pivot to? Are they going to be able to make more than one embryo at a time? Are frozen embryos ever going to be allowed to be discarded?” Melissa asks.
She has seven embryos in storage, four of which are not viable. To avoid discarding any, she might be forced to keep her nonviable embryos frozen for an undetermined time.
In this scenario, Melissa says, “my options would be to pay for them to stay in storage for the rest of our lives, which is very expensive, or to transfer them back to my uterus and see what happens.”
Another possibility would be to move the embryos to more permissive states, like New York. But the cost of transferring can be very expensive.
“We are not recommending that people move embryos, but that certainly could change based on actions that a particular state may take and how we believe it harms people’s rights over their embryos,” says Barb Collura, the president and CEO of Resolve: The National Infertility Association.
While there is no legal precedent for prosecuting health care providers if they’re not willing to implant an unsafe number of embryos, Collura says providers are worried about what will happen in those states with strict abortion bans that don’t clarify the question of IVF.
“If you believe that an embryo is a person, then perhaps even if that embryo is outside of the body, you want to ensure that it is protected and no harm comes to it,” she says. “And that’s where we run into some problems. Because there are things that are done as standard practice in a laboratory in the course of IVF that some may deem as causing harm to that embryo.”
Collura says strict abortion bans could force providers to close practices in those states. “In some cases, it would actually be really hard for doctors to do what they need to do in an IVF cycle,” she says. “So our questions really are: How far are legislators going to go? And how will it impact our community?”
IVF treatment can cost anywhere from $10,000 to $20,000 without health insurance, and most private insurance companies do not cover the cost of the treatments. Traveling for care adds expenses to that. Michigan State University ethicist Sean Valles fears a state ban that outlawed IVF could widen the gap in access to care.
Valles says those who have the means will be able to leave the state to get treatment in “one of the many jurisdictions in the United States or outside the United States where abortion is legal.”
“And so both the ability to grow a family or to delay having it or to delay growing a family, those will both become more and more the prerogative of people who have money and connections and racial privilege,” he says.
While a pause on Michigan’s abortion ban is in place, Melissa and her husband say they are anxiously hoping the state’s courts make a decision in favor of abortion rights so that they can continue to grow their family.