The leaked Supreme Court decision will cast the future of IVF into question in at least 26 states
These states have ‘trigger laws’ that will make abortion instantly illegal the minute the landmark case is overturned. However, these same trigger laws may prevent millions of others from going through IVF and other fertility treatments.
Currently, 2% of births in the US result from IVF, around 55,000 babies. But since the process requires many embryos to be created outside the womb and discarded for many different reasons, those who believe life begins at creation think it should be banned. They also say it is ‘playing God.’
This will affect the 2.5 million Americans who go through IVF each year, including same-sex couples and people dealing with infertility.
According to Cathryn Oakley, senior counsel at the Human Rights Campaign, “IVF can and will absolutely be implicated in some of these states, and that’s something that many of the LGBTQ community and Americans more generally rely on to create their families. It is a very significant addition, one that people are not very aware of and frankly are not going to agree with.”
Since many trigger laws define human life as occurring at “the moment of fertilization,” IVF is sure to come under attack, even if this is a somewhat unintended consequence.
Catherine Sakimura, deputy director and family law director at the National Center for Lesbian Rights, explains. “The trigger laws themselves are not aimed at prohibiting assisted reproduction or IVF and likely will not have that immediate effect.”
“But some of the language of these laws broadly discuss life as beginning at conception, and this language could lead to interpretations that limit or prohibit IVF, because the process of IVF can create embryos that do not result in pregnancies or in viable pregnancies.”
When Roe v Wade was decided in 1973, IVF was not yet a scientific possibility
The first baby conceived with IVF occurred in 1978 in the UK and 1981 in the US.
Sakimura continues, “many of the embryos created through IVF are not viable and cannot grow into a baby. For this reason, more than one embryo is usually created in the IVF process to increase the possibility of pregnancy and live birth. Often, genetic testing is used to see if an embryo has genetic conditions that would prevent a live birth, and visual inspection is used to identify embryos that do not seem to be developing properly.”
Legal experts are unsure of the future of IVF in states like Texas
Ian Pittman is a founding partner at Jorgeson Pittman LLP, a Texas firm that focuses on family and fertility. He says that if Roe v Wade does impact IVF and fertility treatment, “it would be an unintended consequence. The tricky thing is if the trigger law defines life as the moment of conception, does that mean internally in the uterus or outside of the womb in vitro?”
“There are a lot of fertility clinics in Texas, and these are very expensive medical procedures. They employ a lot of people. They create a lot of tax revenue. These trigger laws are meant to prevent abortions from occurring — these IVF procedures are meant to create life.”
Everyone should be allowed to make their own medical choices
People dealing with infertility are often staunch defenders of reproductive rights, as they understand the devastation of having no control over their own fertility.
We will be following this story closely.
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