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Journalism of Courage
After the US Supreme Court overturned ‘Roe v Wade’, the landmark 1973 judgment that made abortion a nationwide constitutional right, the 3 dissenting liberal judges expressed concern that the judgment “places in jeopardy other rights, from contraception to same-sex intimacy and marriage.”
Apart from prohibiting women from accessing safe and legal means for abortions, there have been concerns that the US Supreme Court’s decision could have other far reaching consequences, such as possibly making it difficult for Americans to make use of reproductive medicines, like in vitro fertilisation (IVF).
Fertility companies and patients residing in states with anti-abortion statutes, had earlier begun moving embryos from clinics, anticipating that the overturning of Roe v Wade would trigger broader abortion laws by conservative lawmakers, which could extend to protect fertilised eggs in laboratories, as reported by The Wall Street Journal.
There are growing concerns in the country that state laws which ban abortion from the moment of fertilisation might be able to criminalise the discarding of embryos.
What are abortion trigger laws?
With the June 24 ruling, state laws that already banned abortion will be allowed to come into effect. Before the ruling, 13 states had “trigger laws” in place, which would impose new abortion bans right after the overturning of Roe v Wade, and, as per Reuters, more states will be following soon.
The Guttmacher Institute, a pro-choice research organisation claimed that at least 26 states will soon pass fresh abortion laws.
Legal experts and doctors are concerned that the wording and interpretation of these trigger laws could have larger consequences, possibly impacting the legal status of IVF treatments.
What is vitro fertilisation (IVF)?
Assisted Reproductive Technology (ART) means fertility treatments in which eggs and embryos are handled.
One of the most widely known types of ART is in vitro fertilisation (IVF). The IVF is an expensive, time consuming and medically invasive process, in which mature eggs are retrieved from the ovaries and fertilised by sperm in a laboratory. The fertilised eggs (embryos) are subsequently transferred to the uterus. One full cycle of IVF usually takes approximately 3 weeks.
To improve the chances of the IVF treatment being successful, doctors often extract more than one egg for fertilisation in a lab. But, normally only one of the embryos is implanted in the woman’s womb to develop. The remaining fertilised eggs are typically discarded.
Five years after Roe v Wade was passed (1973), Louise Brown was the first baby to be born via the IVF procedure in England in 1978. Referred to by the media as a “test tube baby”, IVF was considered to be a medical miracle, although the destruction of the unused embryos raised ethical and medical debates. Nonetheless, the procedure came to be widely used and over the next 30 years, IVF and other ARTs produced around 5 million babies across the world.
Based on the US Center for Disease Control and Prevention (CDC) data cited by the Wall Street Journal, more than 2% of the 3.9 million babies born in the US in 2019 were conceived through IVF.
Why has the recent legal development worried people?
On May 3, Politico released an early draft of the court’s final opinion on Roe v Wade. Subsequently, fertility doctors and legal experts who spoke to CNN said there was a great deal of uncertainty about how lawmakers and prosecutors would interpret the strict abortion laws in their states.
After the leak, the non-profit organisation American Society for Reproductive Medicine published a statement saying, “There is a clear and present danger that measures designed to restrict abortion could end up also curtailing access to the family building treatments upon which our infertility patients rely to build their families.”
While the overturning of Roe v Wade does not by itself limit or ban access to IVF, legal experts told Forbes that the overly broad and imprecise language used in some anti-abortion state legislations could perhaps encompass these medical procedures.
What are the major concerns?
Concerns primarily surround the discarded embryos from the IVF procedure and whether some states consider fertilised eggs to have rights or not.
Depending on the language of a state law and its interpretation, authorities would perhaps restrict access to fertility clinics and make the practice of discarding unused embryos in IVF illegal, as reported by Politico.
Some of the 13 states with trigger laws, such as Tennesee, Arkansas and Kentucky define life as beginning at the moment of fertilisation and thus categorise embryos as children, as reported by CNN. The repeal of Roe v Wade could perhaps allow lawmakers to more easily impede in the IVF process.
Furthermore, there are worries that Republican legislators might soon introduce “personhood bills” which would legally recognise embryos as ‘persons’, making IVF treatments more difficult and perhaps criminalising the discarding of surplus embryos.
Dr Natalie Crawford, an American fertility physician, told Business Insider that since the Roe decision predates IVF, its overturning puts the procedure at risk.
“We are specifically worried that ‘personhood’ bills — those that define life at fertilisation, may make aspects of reproductive technology illegal — such as fertilising eggs, growing embryos in the lab, genetically testing embryos, freezing embryos, thawing embryos, and discarding embryos,” she said. “This will place restrictions on IVF either making it illegal or less effective, less safe, and less accessible.”
