When a draft opinion of Dobbs vs. Jackson Women’s Health Organization was leaked in May, doctors and lawyers began sounding the alarm about how such a decision could affect all kinds of reproductive health care, including infertility care. If you are one of the 10% of people in the US experiencing infertility, you may be worried about whether the decision affects assisted reproductive technology, such as IVF, and whether that access will change. Understanding the history behind the decision, what it affects, and how new laws are being implemented can help you make informed decisions about how to proceed with the fertility treatments you need.
When the ruling was announced in 1973, Roe v. Wade was consistent with the U.S. Supreme Court’s prior rulings recognizing a constitutional right to privacy. This right, as the Court explained in Planned Parenthood vs. Casey, protected against government interference in “the private realm of family life… involving the most intimate and personal choices a person makes in a lifetime, choices central to personal dignity and autonomy… central to liberty.” Until Dobbs v. Jackson Women’s Health Organization, it meant that anyone with a uterus had the right to decide, at least up until fetal viability, whether or not to bear a child.
With the Dobbs decision this past June, the Court undid half a century of precedent by removing constitutional protection from state interference in the reproductive choices people with uteruses are legally permitted to make for themselves, their families, and their bodies. Importantly, nothing in the majority opinion preempts a federal, nationwide ban on abortion from the moment of conception.
In the immediate aftermath of the decision, a patchwork of abortion restrictions, trigger laws, and bans around the US have fallen into place. Depending on which state they live in, millions of Americans have lost the legal right to abortion. This affects the decisions people can make for their reproductive choices and the direction of their lives. Dobbs has also made it deeply challenging for people in certain states to access critical health care, whether that means accessing birth control, aborting a fetus with severe birth defects, or treating an illness with a medication that might inadvertently cause an abortion.
While some characterize the Dobbs decision as merely “turning back the clock,” the ruling affects a very different reproductive landscape than we faced fifty years ago. Decades of advances in science, health care, and our understanding of the human body have enabled people to receive care for health ailments and concerns that previously would have gone untreated.
For people experiencing infertility, our understanding of the reproductive system and the many potential causes of infertility have advanced dramatically since 1973. A wide range of fertility treatments and technologies are now possible, enabling people to build their families in the manner best for them. In fact, two out of every 100 babies born in the US are a result of assisted reproductive technologies, such as IVF.
In vitro fertilization (IVF) is a series of medical procedures that remove eggs and sperm from the body to create embryos in a laboratory before implanting them in the uterus. This revolutionary treatment has enabled millions of people to overcome infertility. However, some common practices in IVF that enable people to get pregnant and have healthy pregnancies could be affected by laws restricting or banning abortion. For example, during the IVF process, it is common practice to:
discard embryos that are not viable (aka the fetus will not survive the pregnancy) as well as any embryos a family will not use.
freeze embryos so they can be used for a pregnancy at a later date.
selectively reduce the number of fetuses in a multiple pregnancy to improve outcomes.
conduct genetic testing of embryos when a family is concerned their children might suffer from a devastating disease, such as Tay-Sachs, cystic fibrosis, or sickle cell anemia.
In states where laws define personhood as beginning at the moment of conception, as it is in many of the post-Roe trigger laws, the implications are unclear for embryos created through IVF, the specialists creating them, and the people hoping to use embryos to build their families. Additionally, restrictions on IVF could potentially worsen outcomes, increase costs, and widen inequities in access to care.
Many people who need IVF are understandably concerned. In fact, this past spring, some fertility clinics began moving frozen embryos out of states that were expected to ban abortion.
It may help to know that legal restrictions on abortion that impact assisted reproductive technologies are usually unintentional. Legislation aimed at restricting abortion frequently includes exemptions for people seeking infertility care, including IVF. Since the vast majority of Americans support the use of infertility treatments, it does not seem likely that legislation will begin to strictly regulate reproductive technologies under the umbrella of abortion law.
It is worth paying close attention to how these laws are being implemented, though, and how laws are being written from here on. Restrictive assisted reproduction laws in other countries may provide a template for lawmakers in the US. For example, in Germany, you can only use your own eggs in IVF, and before last year, assisted reproduction was only available to heterosexual couples in France.
For now, you should consult your doctor or fertility care team for more information on what you can expect during your IVF journey in your state, especially if you are using a surrogate. Statements by the attorney general in your state will also help you understand how your state’s laws are being implemented and enforced.
We understand that navigating these changes add stress and uncertainty on top of IVF. At Alife, we continue to be committed to helping patients access safe, accessible, and equitable fertility care.
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