What are the potential risks to fertility and reproductive care post-Roe v. Wade?

Written by on June 24, 2024

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(NEW YORK) — Health care groups and advocates have long warned that the overturn of Roe v. Wade could pose wider threats to reproductive healthcare and that anti-abortion groups’ attacks on reproductive freedoms would not stop at abortion care.

Those warnings materialized earlier this year when in vitro fertilization care was suspended at three of Alabama’s largest providers after a state Supreme Court decision put providers at risk of prosecution.

Now, physicians and experts warn the same could happen in other states with fetal personhood laws.

Further moves by conservative groups and lawmakers have also signaled what other reproductive freedoms could be at risk.

Fetal personhood and IVF

Fetal personhood laws, which classify fetuses, embryos or fertilized eggs as “people” could significantly undermine IVF patients’ ability to make decisions about their care, including what to do with frozen embryos, according to the Center for Reproductive Rights.

“In the IVF context, embryo personhood would be extremely harmful to patients and providers, who could be criminalized, for example, for discarding an embryo or for transferring an embryo that then does not implant,” Karla Torres, senior counsel at the Center for Reproductive Rights, told ABC News in an interview.

Fertility specialists suspended care in Alabama after the state Supreme Court issued a decision saying embryos are children, raising concerns that IVF specialists could face wrongful death lawsuits over handling of embryos. One facility said they even suspended the transfer of embryos to facilities in other states amid the confusion caused by the decision.

The ruling from the court came as part of a lawsuit filed by couples whose embryos were destroyed after a patient wandered into a fertility clinic through an unsecured door, removing several embryos and dropping them to the floor. The couples whose embryos were destroyed filed a wrongful death suit that was thrown out by a lower court that ruled embryos are not people.

The Alabama Supreme Court then reversed the lower court decision and said frozen embryos are children. After facing intense backlash, lawmakers passed legislation that would protect IVF care in the state, allowing care to resume.

“The bill, though, did not address the central finding in the seat Supreme Court’s ruling, which is that cryopreserved embryos constitute ‘unborn children’ under the state’s Wrongful Death Act,” Torres said.

There are currently 11 states with broad fetal personhood laws on the books which could impact IVF treatments, according to Pregnancy Justice, a nonprofit organization that advocates for pregnant people.

An additional five states define a person to include a fetus throughout their criminal code and two more states — Alaska and Wyoming — define an “unborn child” as a human “at any stage of development,” according to Pregnancy Justice.

“The legal question is: at what point should a citizen be protected? And where I take issue with the Alabama ruling, is that they utilize their religious beliefs that life begins at fertilization. And that crossed a line, which shouldn’t be crossed due to the alleged separation of church and state, that they now are saying that life gets protected,” Dr. Eve Feinberg, a physician and fertility specialist at Northwestern University in Illinois, told ABC News.

“It’s very dangerous for the provision of safe fertility care and I think it’s very dangerous from a litigation standpoint, in the numerous instances where pregnancies may end through no fault or embryos may stop growing through no fault,” Feinberg said.

Less than half of oocytes — cells from ovaries — retrieved in a single IVF cycle become an embryo that could become viable.

“[Most] of everything that you start with stops growing and developing in IVF and that’s just in the laboratory,” Feinberg said.

Between 20 to 50% of embryos implanted stop growing after they are implanted, Feinberg said.

After patients are done with IVF, some choose to donate unused embryos left over from IVF to science. A key part of how the fertility field has advanced is research on human embryos, according to Feinberg.

Surrogacy

Fertility patients who grow their families with the help of a gestational carrier, or surrogate, often do not live in the same state as the surrogate, but one fertility specialist told ABC News the overturn of Roe has changed how patients feel.

“We have had patients who have gestational carriers who live in Texas or other red states, and it really makes them question whether they feel comfortable having somebody in one of those states carry their child,” Feinberg said.

“I’ve had a number of patients who have turned down really otherwise good candidates to be a gestational carrier because the GC lives in an unfavorable state,” Feinberg said.

Intended parents who turned down surrogates in other states are concerned about not wanting to continue a pregnancy with a fatal fetal anomaly incompatible with life or the surrogate facing potential obstetric complications, like their water breaking before the fetus is viable, Feinberg said.

“Intended parents just don’t want to be in a situation where the medical care of the person carrying their pregnancy is compromised. Texas laws are putting women at risk of death period,” Feinberg said.

The usage of surrogates has increased in recent years due to several factors, including high cancer survivorship, which may leave survivors unable to carry a pregnancy; the number of cesarean section deliveries having “skyrocketed,” bringing an increased risk of postpartum hemorrhage and hysterectomies; and women surviving conditions, like congenital heart defects that were corrected as babies, that leave them unable to carry their own pregnancies, Feinberg said.

Patients, who are more commonly using surrogacy, never thought twice about what state a potential carrier lived in before Roe was overturned, Feinberg said.

“It’s driving up the cost of surrogacy, it is further diminishing the pool of available surrogates, and … women who sign up to be surrogates — they may be risking their lives in ways that they never thought about previously,” Feinberg said.

Contraception

Indiana lawmakers recently passed new legislation that would require hospitals to offer postpartum patients with long acting reversible contraceptives.

“The bill author ended up getting advice from [anti-abortion group] Right to Life that they should remove IUDs specifically from the bill because Right to Life considers IUDs to be abortifacients[, causing abortions]. So the bill was represented in its amended form to only specifically include subdermal implants,” Dr. Carrie Rouse, a maternal fetal medicine specialist in Indiana, told ABC News in an interview.

“It creates this two-tiered approach to contraception where implants are good and IUDs are bad IUDs cause abortion, which is absolutely not true, but it sets the precedent,” Rouse said.

An IUD is birth control placed in the uterus while a contraceptive implant is placed in the arm.

Lessons to learn from

Feinberg pointed to strict laws that used to regulate IVF care in Italy — mandating that only three eggs be fertilized in a single IVF cycle and that everything that is fertilized has to be transferred — as a cautionary tale for lawmakers in the U.S.

“IVF success rates were very low and the multiple pregnancy rate particularly that triplet rate was very high — unacceptably high,” Feinberg said.

This led to very high risk pregnancies and many children being born premature or with congenital anomalies, Feinberg said.

“Ultimately, the government said, Okay, we’re not going to interfere. And they, they lifted the bans on how IVF was mandated to be practiced. I think what’s very scary, is we are now potentially moving towards that,” Feinberg said.

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