How abortion bans could restrict infertility treatments like IVF

The American Society for Reproductive Medicine has said state abortion laws that include overly broad statutory language “could, intentionally or not, implicate and even ban such procedures” like in vitro fertilization (IVF).

by Shirin Ali | July 7, 2022 | Jul. 07, 2022

File – Embryologist Ric Ross holds a dish with human embryos at the La Jolla IVF Clinic February 28, 2007 in La Jolla, California. The clinic accepts donated embryos from around the country through The Stem Cell resource which are then given to stem cell research labs for research. Sandy Huffaker/Getty Images

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After the Supreme Court overturned the constitutional right to abortion, health care providers are worried about how it will impact patients with infertility.

Many people use assisted reproductive technology like in vitro fertilization, which involves unfreezing embryos to help a person become pregnant.

Many embryos do not survive the unfreezing process and could create grounds for legal action under a wave of new state abortion laws.

Health care providers are trying to navigate a world without legal abortion protections and worry there could be serious implications for those patients with infertility who rely on assisted reproductive technology, like in vitro fertilization (IVF).

After the Supreme Court overturned Roe v. Wade—the 1973 landmark decision that affirmed abortion as a constitutional right—health care providers aren’t yet certain how it will impact their patients who use fertility technology that implants one or two embryos into a uterus in order to help a person become pregnant.

It’s a type of assisted reproductive technology (ART) known as in vitro fertilization (IVF) and about 2 percent of all infants born in the U.S. were conceived this way in 2019.

Though the court’s decision to overturn Roe did not specifically mention ART, health care providers worry it could eventually be targeted.

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The American Society for Reproductive Medicine (ASRM) published a policy paper to study the potential impact local states’ abortion trigger laws could have on reproductive medicine. The group emphasized state laws that include overly broad statutory language “could, intentionally or not, implicate and even ban such procedures” like IVF.

ART procedures like IVF involve freezing and unfreezing embryos that are then thawed for implantation into the uterus and many embryos are found to be defective or do not survive the unfreezing process.

That’s the key component of IVF at the center of potential legal battles—how a lab and patient handle embryos that are not used for pregnancy.

Utah is one of 13 states where a trigger law took effect after the downfall of Roe, and it bans all abortions except in cases of rape, incest or severe fetal “brain abnormality,” while also excluding the removal of ectopic pregnancies or a “dead unborn child” from its definition of an abortion.

ASRM found that Utah’s trigger law could be interpreted to have an impact on ART because it defines abortion to include, “[any] intentional killing or attempted killing of a live unborn child through a medical procedure carried out by a physician or through a substance used under the direction of a physician.”

For health care providers in Utah, that creates a gray area because that state’s trigger law doesn’t define the term “live unborn child” and ASRM says, “one could argue that discarding an embryo or donating an embryo for research use is an intentional or attempted killing of a live unborn child and constitutes an abortion under this definition.”

However, on June 27 a lawsuit brought against Utah’s state law was granted a temporary 14-day restraining order and currently the state is allowed to continue providing abortions.

ASRM didn’t find any additional trigger laws that posed similar risks as Utah’s, but each state has its own unique definitions for “pregnant,” “fertilization,” and “unborn human being,” that ultimately can be interpreted in different ways.

Like in Arkansas, whose trigger law defines “unborn child” as an individual organism of the species Homo sapiens from fertilization until live birth.

In Idaho’s trigger law, “pregnancy” is defined as, “the reproductive condition of having a developing fetus in the body commences with fertilization.” ASMR says that creates some level of ambiguity, but it presumes that pregnancy requires both fertilization and the fetus being in the body.

After the court released its decision to overturn Roe, RESOLVE, The National Infertility Assocation, also warned that it could open the door for states to introduce far-reaching laws that will create barriers to procedures like IVF or even medications that help a patient suffering an ectopic pregnancy or miscarriage.

“Not only do people have the right to create embryos, but they are the only ones who have the right to determine what happens to their embryos,” said RESOLVE in a statement.