Let’s talk about the Dobbs v Jackson decision overturning Roe v Wade. Some think this is purely an abortion discussion, while many fertility doctors and patients think the pendulum will swing way further.
One weapon used in the abortion war is “personhood,” which is a concept that Supreme Court Justice Alito left open in the Dobbs v Jackson decision. “Personhood” defines life as beginning at the moment that sperm and egg fuse for fertilization. Though this seems an easy or obvious cutoff, those of us with careers helping couples conceive children know that the reality is far more complex. In the body as well as when performing in vitro fertilization (IVF):
- Many eggs fail to fertilize despite sperm and egg finding each other
- Many fertilized eggs (embryos) don’t grow
- Many embryos are chromosomally abnormal and could never result in a baby
- Many embryos don’t attach to the uterus
- Many embryos that attach still miscarry or otherwise don’t develop
Choosing to use the moment of fertilization as a cutoff to regulate what doctors can say and do doesn’t make biological sense and results in politicians, pundits, and religious groups playing doctor. It interferes with the doctor-patient relationship and can make it hard for physicians to maximize medicine to help couples have a family. Instead, “personhood” dooms many women to less effective fertility care, higher rates of miscarriage and many will never have children as a result. It is ironic that some are willing to sacrifice women who want children in a war on those that don’t.
Just last night, I talked with multiple OB/GYN’s who said that laws that will affect fertility and IVF will never happen. However, just three years ago, we would have thought vaccination discussions to be between doctors and patients, and not to rise (or fall) into partisan virtue signaling. Regarding IVF, just last month Louisiana lawmakers were developing House Bill 813, which advanced personhood. It was so extreme that even LA Governor John Bel Edwards opposed its methods, tweeting “HB 813 is not a pro-life bill.”
Though defeated in 2011 in Mississippi by 58% to 42%, had personhood legislation in Mississippi passed, it was estimated it would change over 15,000 state laws. Examples of potential unintended consequences with personhood include:
- Pregnancies could count towards high occupancy vehicle lanes
- Fertility clinics would have to register as daycare centers with associated staffing ratios to look after children under the age of three (even if only five days post-fertilization and prior to implantation in the uterus)
- If an embryo fails to develop or implant (when most do in the body as well as in the IVF lab), embryologists and physicians could be charged with negligent homicide, and other medical team members could be charged as accessories to a crime.
- Using an IUD would hinder the implantation of a fertilized egg, and could also lead to criminal charges
- Frozen embryos not yet transferred would have inheritance rights were both parents to be killed in a car accident.
This is discussed in even greater detail by the American Society of Reproductive Medicine with the below link:
I don’t want to get into the abortion debate. That’s incredibly complex. I say this on my own and not representing any organization or institution; my whole world is helping bring children into this world. And that is a remarkable thing, and I and my whole team are passionate about that. At the same time, we also see complex legislation produced by politicians not fully realizing its implications.
For example, heartbeat bills can affect a situation where the pregnancy does not have a brain (“anencephaly”). There is no way this child is going to be normal. And this situation under the trigger law in Mississippi law that’s just been enacted would require the woman to bring it to term, even though the child will never have a brain even if it does have a heartbeat.
You can see pregnancies where the child has no kidneys, and as a result, there’s no amniotic fluid, resulting in the lungs not developing. This will result in being on a ventilator for a little bit before ultimately dying, but also would require it being brought to term.
There are passionate people on both sides with wildly differing views on this topic. But as some people have pointed out, there are a lot of legislators out there regulating someone’s uterus when they aren’t even familiar with their own wife’s gynecological anatomy.
We must be careful of being reductionist, where we oversimplify complex issues. My view on this particular front is we need a society where doctors make medical decisions rather than legislators. And I’m pretty passionate about that for all of medicine, reproductive or otherwise.
All should agree that regardless of political views, couples wanting loved and desired children should not be casualties of war in the fight over abortion.
And people say, well, abortion, there are many ways of looking at that that are very complex, and I do not deny that. But I passionately believe that women who want children and are working hard to bring into this world healthy, loved children shouldn’t be casualties of the abortion war.
If you’ve been blessed with a child through the IVF process, we would love to see your post on social media acknowledging that your child would not be here with some of the proposed legislation. We need to have voices valuing children brought into this world through IVF and protecting future families for whom IVF may be medically necessary to have babies.
And those are voices that are not being heard clearly or loudly enough.
In summary, how does Dobbs vs Jackson and overturning Roe vs Wade affect your fertility, and what happens to your embryos?
#1 The quick version is nothing for fertility changes today.
#2 The long version: rights can change. MS House Representative Becky Currie, who drafted the Dobbs legislation, has assured people that this was only about abortion and that they don’t intend to target fertility.
However, LA Representative Danny McCormick with HB 813 would have made it where if an embryo didn’t survive (and typically 75%+ don’t survive both in the body and the lab), IVF teams could be investigated for murder, effectively making IVF illegal vs. impossible.
Three years ago, we would have thought vaccination not to be a partisan issue—look where it is now.
This is a slippery slope, and fertility specialists and patients across the US are worried. We need to speak up to protect women who want families. Let your representatives know you are worried and passionate. If they don’t hear from us, they won’t protect us.
#3 We are seeing a huge shift in politics regulating medicine. Medical care that physicians are trained to do can result in lawsuits and jail time based on decisions made by politicians or misinterpretations by the public.
Trigger laws now in effect could create situations in the US happening internationally today, like
- The raped 11-year-old in Brazil being forced to carry a child to term to protect the fetus’s rights (Louisiana’s abortion law now no longer makes an exception for rape victims).
- The woman in Malta, where doctors are not allowed to help her complete her miscarriage.
Your doctor may be unable to talk to you honestly out of fear, weakening relationships. Moreover, if you are a young doctor or nurse thinking about your career, would you want to practice medicine in a State that makes medical decisions based on politics versus physician expertise?
#4 Reprotech (the highly trusted cryostorage facility that provides long-term storage to IVF centers) hasn’t issued a statement on embryo storage, but it would be crazy for them not to. They currently have TX, MN, FL, and NV facilities but are about to open one in CT. Though I don’t have a crystal ball, I would expect CT to be one of the least likely states to restrict embryo handling.
#5 Any sudden change seems apocalyptic. Having survived a plague and seemingly on the verge of World War III, with time, I am hopeful sound minds can find ways to address the new and unknown. We can’t become jaded, but we will get through.
#6 Pray for others, but also write/call your senators and vote (not just today but in the coming months). The impact of this ruling will be a long-term battle that requires us to do all we can to protect women and current/future families in our State.
To quote ASRM president Marcelle Cedars, “Decisions about healthcare, particularly reproductive healthcare, should be made by patients and physicians, not by interest groups, religious organizations, politicians, pundits, or Supreme Court Justices.”
You are all in our hopes, thoughts, and prayers more than you can imagine.