For fertility specialists across the country who are trying to help those who want to start families, abortion bans in many states after Roe v. Wade was overturned have raised new questions and concerns around the practice of in vitro fertilization.
Perhaps the most significant concern, according to experts, is the potential for state laws that specify that life begins at the moment of fertilization, and what that could mean for embryos, including whether they could be frozen for future use, whether they could be discarded, and whether patients could ultimately choose to do what they want with their own embryos.
Currently, there are tens of thousands of embryos in cryopreservation across the country, Ginny Ryan, MD, a reproductive endocrinologist and fertility specialist at UW Medicine in Seattle, told MedPage Today.
For patients undergoing IVF, confusion about what new state laws could mean for their embryos is an added stressor, and it’s hardly the only one brought up by the end of Roe, Ryan noted, adding that one patient recently told her, “I don’t feel like I even want to be a pregnant person in this current climate.”
Challenges to Standard Practice?
The idea that life begins at fertilization is concerning for IVF providers because of the way the process intrinsically works.
Once eggs are retrieved from a patient, they are inseminated, and all of the embryos are cultured in a dish and watched in an incubator, Ryan explained. After 5 to 6 days, those that haven’t progressed to a state that is normal are typically discarded. Biopsies are frequently performed on the remaining embryos for chromosomal abnormalities, especially for women in their late thirties or older. After the genetic testing is complete, there may be additional embryos that are discarded or donated to research.
In IVF, a significant number of eggs are collected, many of which are genetically abnormal, said Jennifer Makarov, MD, an ob/gyn and reproductive endocrinology and fertility specialist at New Hope Fertility Center in New York City. Providers are able to determine which fertilized eggs are likely to go on to a pregnancy and which are not. However, if new laws specify that embryos are protected from the time of fertilization, then that could create a significant problem for patients.
Overall, the potential for such laws shows a lack of understanding of how biology works, Makarov told MedPage Today. For example, consider a patient in her thirties who has 10 eggs collected during an IVF cycle. “We’re lucky if at the end we have one that shows the potential to grow into a pregnancy,” she noted.
If you have to treat all the other abnormal eggs, and you’re not able to discard them when you know they don’t have the potential to grow into a pregnancy, that is a real problem when it comes to physicians doing their jobs, she said.
There are also concerns about the ability to screen embryos for certain diseases and potentially having to use an embryo that carries one, Makarov added, as well as worries around the potential for embryologists and physicians to be targeted for doing their jobs and making decisions with patients.
Fertilizing one egg at a time and implanting it into the uterus would add a huge amount of expense and travel for treatment, and put women at risk for multiple miscarriages and of not being able to receive the right care for those miscarriages, she noted.
‘It’s All Sort of Murky’
Makarov said that she and her colleagues have fielded many questions from patients wondering what the end of Roe means for their treatment, as well as their existing and future embryos.
“Right now, we feel pretty protected here in New York about the ability to practice medicine and make decisions with our patients,” she said. However, “we don’t know what will happen in some of these trigger-law states.”
Overall, the morale in healthcare is down, Makarov noted. Many healthcare professionals have left the field due to effects from the COVID-19 pandemic, and now, the overturning of Roe is an “additional hit to our autonomy and our ability to practice medicine.”
Ryan said that she hopes the end of abortion protections may encourage people who feel passionately about access to care to pursue a career in healthcare, though she is concerned about whether institutions will become less willing to support practices financially and legally in such an uncertain climate, and what that means for supporting the overall practice and the next generation of providers.
“It’s all sort of murky and unclear at this point,” Makarov said. “It’s always this fear of what the legal ramifications could be, or could that change.”
Legal Experts Weigh In
Molly O’Brien, JD, a partner at the International Fertility Law Group in Los Angeles, said that she and her colleagues have also fielded a large number of inquiries from domestic and international clients wanting to know what the end of Roe means for IVF-related services, primarily from those who are currently undergoing processes or treatments, but also from agencies that match egg donors with parents, as well as physicians.
One particular concern is when embryos aren’t stored in the same state in which the provider’s office is located, she noted. Some people may not want to take on the risk of transporting embryos, while others may feel uncomfortable keeping embryos in a state that has enacted or is pursuing new abortion laws.
As it stands, there is a constitutional right to travel to another state or area for any reason, particularly to seek medical care, O’Brien said. As long as that constitutional right is not affected, people could technically move their embryos if they needed to.
Lisa Ikemoto, a professor at the University of California Davis School of Law, told MedPage Today that it is already common practice for people to travel for access to reproductive health services, which could limit access to these services.
Furthermore, new laws could affect private equity investment in fertility clinics, including large systems that are practicing in multiple states, she said.
Ikemoto also pointed out that biomedical research being conducted with the goal of improving IVF — some of which uses embryos — could be affected, since new laws could make it riskier for researchers to perform these kinds of studies, creating a type of catch-22 in which the laws would undercut efforts to improve the success rate of pregnancy.
Ultimately, Ryan said that it’s important to remember that fertility care is not simply a niche and glamorous practice, but is designed to help a wide swath of patients in achieving their goal of starting a family.
“We don’t just see your standard infertility patient,” she said of her practice. “This affects people who have cancer or have other reasons that they want to preserve their fertility for the future.”
It could also affect same-sex couples, transgender patients, and patients with a wide range of health challenges, such as uterine abnormalities and recurrent pregnancy loss.
“We worry about the ability to provide good care,” she said.
Jennifer Henderson joined MedPage Today as an enterprise and investigative writer in Jan. 2021. She has covered the healthcare industry in NYC, life sciences and the business of law, among other areas.