The Supposedly Pro-Life IVF Act Is Now in Danger

The process of in vitro fertilisation, or IVF, starts when an egg and sperm combine in a lab's petri dish. The fertilised eggs, which are now tiny embryos, are either preserved for later use or put inside the uterus of the intended mother using a needle a few days after fertilisation. The treatment is successful if the embryo implants into the uterine wall, resulting in pregnancy, but the success rate of IVF is only 50%, and that only applies to women who are 35 or younger. IVF is sometimes described by fertility specialists as a numbers game needing numerous attempts and, naturally, numerous embryos. One of the most successful uses of assisted reproductive technologies is "playing the game” However, it may also be a painful, discouraging process—especially for couples or people who may already be coping with the psychological toll of protracted infertility issues.

After Roe v. Wade, an unsuccessful IVF round may now result in more than just disappointment. It might present a criminal risk.

Dobbs v. Jackson Women's Health, the Supreme Court's ruling, ruthlessly invalidated Roe. Before the decision, legal and medical experts questioned whether IVF providers and patients may face criminal charges or other legal ramifications if state abortion prohibitions were to restrict access to IVF. Routine embryo destruction during the IVF process and unsuccessful IVF cycles may even be charged as manslaughter if a state's abortion law implicitly—or explicitly—recognizes embryos as children, as several do.

According to research by the healthcare start-up Power, 34 states may outlaw or restrict IVF if Roe were to be overturned. According to a Power spokeswoman, these states include the 22 that have a trigger or pre-Roe abortion laws as well as 12 others that do not explicitly protect the right to an abortion in their state constitutions. IVF will be "most at risk" in states with abortion bans that explicitly include "life begins at conception" language, according to Elizabeth Nash, the principal policy analyst for state issues at the Guttmacher Institute, because "this language defines 'child' as starting at fertilisation, and it doesn't look like any of [the bans] specifically have exceptions for IVF." Nine states are now implementing their trigger bans: Alabama, Arkansas, Kentucky, Louisiana, Missouri, Oklahoma, South Dakota, Texas, and Utah.

In addition to these restrictions on abortion, Nash pointed out that roughly 40 states have foetal homicide laws, which grant embryos and foetus personality by classifying them as homicide victims if a pregnant woman is killed or otherwise wounded or miscarries. Although anti-abortion campaigners and prosecutors have appropriated these laws to humanise foetuses and portray expectant mothers as murderers, they were initially designed to address the problem of homicide as the major cause of death for pregnant individuals. In cases frequently incorporating foetal homicide statutes, over 1,300 pregnant women—a disproportionate percentage of the people of colour—faced criminal charges for the outcomes of their pregnancies between 2006 and 2020. Notably, after stillbirth, numerous pregnant women were charged with crimes, including manslaughter.

Different states in different ways open up loopholes for IVF to be regulated or outlawed through "life begins at conception" terminology, foetal homicide statutes, and abortion bans—all of which dangerously extend the legal definition of a child in different ways. As a result, IVF service providers report being uncertain about the implications of abortion laws for their offerings. The Wall Street Journal reports that while clinicians are advising patients to demand legislation that specifically safeguards IVF, some patients are requesting that providers relocate embryos to states that uphold abortion rights. We'll have to wait and see if anti-abortion lawmakers or prosecutors try to exploit these gaps and keep a close check on IVF. Alternatively, if IVF doctors try to stop patients in their tracks by keeping a check on IVF treatments themselves.

It was more than ten years ago how foetal personhood rights may affect American access to IVF. In 2011, Mississippi voters approved a ballot measure granting full personhood rights to foetuses and embryos. According to Dana Sussman, deputy executive director of National Advocates for Pregnant Women (NAPW), abortion opponents who supported IVF and abortion rights supporters formed an "unlikely alliance" to defeat the measure. Mississippi and other states with comparable anti-abortion legislation, however, "have evolved politically a lot since then," according to Sussman. And as of right now, she continued, "There is a lack of clarification as to what these [trigger and pre-Roe] bans that state 'life begins at conception' truly mean in practice, and that's tremendously problematic about IVF." When abortion was outlawed in Ireland, doctors struggled to determine whether procedures involving the disposal of extra embryos were unlawful. As a result, IVF procedures were left indefinitely in limbo.

In contrast to the anti-abortion movement's purported commitment to family values, Pew Research Center showed that one-third of Americans reported using some form of fertility therapy themselves or knowing someone who did. This would be terrible for people who are attempting to start families. However, if IVF providers proactively discontinue IVF out of concern that they would be abiding by the law, IVF and all other fertility-related services—blood tests, semen exams, the complete gamut of assisted reproductive technologies—could become significantly less accessible: According to Bask Gill, a co-founder of Power, "IVF is such a huge source of money for many of these [fertility] clinics, that if you ban them from offering IVF, many of them probably can't operate." This could result in a significant reduction in the number of reproductive clinics, which would make it much more difficult for patients to get fertility treatments.

Of course, revenue loss isn't the only concern; experts at the IVF provider ARC Fertility have long cautioned that receiving or giving IVF in many states in a post-Roe America might result in harsh penalties, such as fines, litigation, and even criminal charges. If a state forbids abortion, Nash said, IVF providers will carefully review the regulations to see whether they can meet their patients' requirements while also abiding by the law.

States have been introducing or adopting legislation to grant embryos and foetus legal personality status for years, in addition to "life begins at conception" rhetoric, abortion restrictions, and foetal homicide statutes. Recent legislation in Texas would permit expectant mothers to use the carpool lane while acknowledging their unborn child as a live passenger. Republicans in Congress have also proposed a child tax credit for expectant mothers, recognising embryos and foetuses as children, and recent elections in several states included ballot issues addressing the rights of foetuses to personhood.

According to NAPW's study, there have been several instances where pregnant women have been denied permission to travel outside of their state due to their partners' custody disputes—some cases even went as far as to label such travel as "kidnapping." Although, as Sussman pointed out, these cases were entirely unrelated to IVF and arose from people attempting to meet the minimum age requirement to run for office, other legal cases have debated the merits of identifying individuals' birthdays as the date they were conceived, instead of the date of their birth. According to Sussman, the child welfare system has "determined people to be 'neglectful' or 'abusive' parents before there is even an actual infant" because of their behaviours during pregnancy. This system frequently singles out and targets Black families and families of colour.

Despite how absurd it may appear, any legal acknowledgement that life begins at conception has continuously had harmful effects on expectant mothers. As a result of grossly false anti-abortion claims that these methods cause so-called "early abortions" by preventing a fertilised egg from implanting in the uterus, several contraceptive methods, such as certain birth control tablets, Plan B, or IUDs, could be outlawed. (From a medical perspective, this is absurd.)

In a post-Roe America, it is this redefining of what or who is a kid that threatens access to IVF, which is a particularly harsh result for those who battle with infertility. IVF is already a highly trying, emotionally demanding experience, according to Sussman. "It just seems like yet another layer of dehumanisation of the mother or pregnant person to have to go through further procedures to prevent the criminalization of legal penalties, knowing that of course, those embryos aren't going to live."

When numerous Republican senators questioned Judge Ketanji Brown Jackson on her view on the beginning of life back in March during Senate hearings for her nomination to the Supreme Court, they confirmed what we had long known: The real objective of anti-abortion lawmakers goes beyond outlawing abortion and involves giving "equal protection" to fertilised eggs, at the expense of the humanity of the person carrying the eggs.

Despite its pernicious "family values" rhetoric, Sussman noted that the threats to IVF and other fertility treatments posed by the Roe decision testify to the anti-abortion movement's broader, long-lasting assault on pregnant women and families. "In no way is this about ensuring the welfare or health of the foetus. If it were, we would be pushing for methods that genuinely improve maternal and foetal health outcomes, supporting mental health care and drug treatment in a non-judgmental, culturally appropriate manner for pregnant individuals.

Post-Roe restrictions and penalties may soon prevent people from starting children, and they may even be charged with a crime if they use IVF. This is why the framework for reproductive justice developed by Black women has always called for more than simply the right to an abortion, but rather all of the rights and resources need to raise children or not in communities that are safe and healthy. Contrarily, the anti-abortion movement has always despised children and families beneath its pretentious "pro-life" rhetoric. That contempt is on full display as IVF patients are left dreading what the future may hold.