The Supreme Court's Dobbs Decision Threatens Assisted Reproduction
IVF at "significant risk"
More than 73,000 babies were born in the U.S. by means of in vitro fertilization (IVF) techniques in 2020, slightly more than 2 percent of all births that year. About 85 percent of children born as a result of IVF procedures in this country are born from thawed embryos. Since 1987, more than 1 million Americans started their lives as embryos created outside of their mother's bodies. By one estimate, as many as 1.4 million embryos remain frozen at U.S. fertility clinics.
It is not clear what effect the U.S. Supreme Court's decision in Dobbs v. Jackson Women's Health Organization will have on would-be parents seeking to use IVF as a way to have children. The majority opinion states that abortion destroys "potential life" and what the Mississippi statute at issue in the case calls an "unborn human being." It does not, however, mention IVF or other assisted reproduction techniques.
Infertility advocates and practitioners of fertility medicine are, nevertheless, concerned about the long-term implications of the Dobbs decision. In an article in Contemporary OB/GYN, Jared Robins and Sean Tipton, respectively the executive director and the chief policy and advocacy officer of the American Society for Reproductive Medicine, argue that the Dobbs decision puts fertility care at "significant risk." Under current practice, patients of IVF clinics generally choose to create numerous embryos for possible implantation. As fertility treatments proceed, embryos are often discarded when pre-implantation genetic diagnosis indicates significant inheritable maladies or after patients have completed their families.
As an example of post-Dobbs risks, Robins and Tipton point to Nebraska's Legislative Bill 933 which declares that an "unborn child means an individual living member of the species homo sapiens, throughout the embryonic and fetal stages of development from fertilization to full gestation and childbirth." They assert that "this bill clearly classifies an IVF-created embryo as an unborn child." Under the Nebraska bill, "causing or abetting the termination of the life of an unborn child" is a Class IIA felony, punishable by up 20 years in prison.
An op-ed in The New England Journal of Medicine also notes that users of IVF services who have completed their families generally choose to destroy their unused frozen embryos. "If these embryos are declared human lives by the stroke of a governor's pen, their destruction may be outlawed," observes the op-ed. "What will be the fate of abandoned embryos, of the people who 'abandon' them, and more broadly of IVF centers in these jurisdictions?"
Writing in the Journal of the American Medical Association, two legal scholars and a doctor observe that with respect to using IVF to treat infertility, "a future Supreme Court opinion might easily group embryo destruction as more like abortion because of its involvement with the destruction of 'potential life.'" They add that the Supreme Court might more easily decide to prohibit IVF because it would not involve "a countervailing claim to a woman's gestational bodily autonomy."
In their more sanguine analysis of how the Dobbs decision could affect IVF treatments over at The Washington Post, three political scientists note that since 2010, 45 of the 83 bills mentioning both abortion and IVF introduced or passed by state legislatures have explicitly exempted IVF and assisted reproductive technologies. The political reluctance to ban IVF may be based on the fact that most Americans are in favor of allowing people to use it. A 2013 poll found that only 12 percent of respondents thought IVF to be morally wrong. (Of course, the fact that a majority of Americans believe that decisions about terminating a pregnancy should be left to a woman and her doctor didn't prevent Roe v. Wade from being overturned.)
Given the number of embryos destroyed as a side effect of IVF treatments, Lehigh University bioethicist Dena Davis sought to analyze in her 2006 article, "The Puzzle of IVF," why there was so little anti-IVF activism on the part of the pro-life movement. She starkly concluded:
The continued hostility toward abortion, even to the earliest form of possible abortion embodied in emergency contraception, coupled with the absence of attacks on IVF, can best be described as a relative indifference to the moral status of the embryo, but rather a great deal of hostility toward economic equality of women, sexual activity outside of marriage, and marriages that are not organized along traditional gender lines. When conservative activists see abortion, they see the destruction of embryos, yes, but they also see women who are insisting on their equality in the workplace and on marriages that are not organized around strong gender roles. When conservatives see IVF, they largely ignore the destruction of embryos, because they see heterosexual married couples going to great lengths to have children. Thus, it appears that the crucial variable in the equation is not the destruction of the embryo, but the behavior and roles and possibilities open to women. Anti-abortion activists claim to be motivated purely by concern for the unborn, but in fact they are motivated primarily by concerns for the shape of society and for the preservation of traditional gender roles.
Davis' conclusion was somewhat vindicated during the debate last month over Alabama's new anti-abortion law, the stated goal of which is to "protect the sanctity of unborn life." When bill sponsor state Sen. Clyde Chambliss (R) was asked how the law would affect IVF labs that discarded embryos, he responded, "The egg in the lab doesn't apply. It's not in a woman. She's not pregnant."
"We believe that without the protection of Roe v Wade, state lawmakers now have an open door to introduce far-reaching legislation that will create barriers for people to access medical procedures like IVF (emphasis theirs)," declared RESOLVE: The National Infertility Association in a statement. "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." Post-Dobbs, this may not be the case for much longer in some states.