That’s what people are saying now.
Abortion bans across the country have thrown into question the fate of in vitro fertilization, an expensive medical process that helps people become pregnant.
But experts and anti-abortion groups say Texas’ laws shouldn’t apply to IVF treatment, and clinics across the state are proceeding with the procedures for now.
Similar to other “trigger laws” enacted to ban abortion after the U.S. Supreme Court’s reversal of Roe v. Wade, a Texas law passed last year broadens the definition of an “unborn child” to begin at “fertilization” and include “embryonic” stages.
That type of language can raise questions about the “personhood” and rights of embryos in IVF and other fertility treatments, said Dr. Natalie Crawford, who is co-founder of Fora Fertility in Austin.
In IVF, Crawford said, doctors use hormone injections to save more of a woman’s eggs during a menstrual cycle and take them out to fertilize them with sperm in a lab. The eggs are then allowed to grow into a blastocyst, or an implantation-stage embryo.
Crawford said this allows doctors to select the embryo they believe has the “highest chance of success” for a pregnancy to put back inside the woman’s uterus and save the other embryos so patients can try again or grow their family in the future. Doctors can also use these embryos to test for genetic diseases.
Once a person or couple no longer need the embryos, they decide whether to discard them as medical waste, donate them for scientific research or to donate them to another couple, she said. It’s this step in particular that is posing a question for IVF treatments in the face of abortion bans.
“The thing that we’re the most uncertain about is, ‘could it impact discarding embryos, like when somebody is done with their family and they have remaining embryos?’” Crawford said. “Or if they have genetically abnormal embryos, could it potentially make it harder to discard those?”
Some also worry about doctors’ ability to conduct genetic testing.
Right now, Crawford and other fertility doctors in Texas and other states are continuing IVF treatments because most laws against abortions focus on embryos during pregnancies, not outside of the womb.
“While they contain phrases like ‘every stage of human development,’ or ‘from the moment of conception,’ which makes us nervous, they are written in a statute that is clearly about terminating an established pregnancy,” said Sean Tipton, chief policy and advocacy officer for the American Society for Reproductive Medicine.
The American Society for Reproductive Medicine broke down “trigger laws” across the country, based on its lawyers’ analysis, and says Texas’ trigger law “does not appear to be applicable to IVF and reproductive medicine services prior to implantation of embryos.”
[…]
In Arkansas, Alabama and Oklahoma, attorney generals’ offices have clarified anti-abortion laws should not have implications for IVF, but Idaho’s attorney general said it would be up to local prosecutors to decide how to enforce the state’s trigger law, according to NBC News. Texas Attorney General Ken Paxton’s office did not respond to a request for comment from The Texas Tribune.
[…]
[John] Seago said Texas Right to Life has concerns about the “destruction” of “excessive” embryos, particularly in medical research, but the issue is not one of its priorities for Texas’ 2023 legislative session. Instead, its priorities include enforcing existing laws against abortion and providing more support for pregnant women.
Amy O’Donnell, a spokesperson for the Texas Alliance for Life, said the group had not finalized its legislative priorities yet, but said the group supported a law passed in 2017 requiring the Texas Department of Family and Protective Services to post information on its website about embryo donations to other people to promote the option.
A bill filed in 2019 aimed to ban state agencies from contracting with vendors affiliated with “destructive embryonic stem cell research,” human cloning and abortions, but the legislation didn’t gain traction.
Do you trust Ken Paxton, the guy who’s now suing to force doctors to let women die rather than perform an abortion that would save them, to take a reasoned and nuanced view of this? Do you trust the forced-birth advocates, who worry about the “destruction” of “excessive” embryos, to sit this one out? They could force you to pay for storage of your unused embryos for literally all of eternity, or to give them to strangers, if they get their minds to it and still have the legislative majorities. Do you trust the same legislature that passed SB8 to refuse to do their bidding if it comes to that?
If I were in this position, this is what I would do.
[Dr. Robert] Hunter runs a fertility clinic offering in vitro fertilization (IVF) in Louisville, Kentucky, where a blocked abortion law could soon put IVF in jeopardy, too. Now, many patients are scrambling to make decisions about their future. Kentucky is one of a handful of states that wants to use an abortion regulation to define life as beginning at fertilization, common language that is present in several other abortion bans that have gone into effect or will soon, including in Utah, Texas and Louisiana.
The Kentucky law is currently blocked by courts, but that could change soon and, in November, voters will determine whether the state can even guarantee the right to an abortion.
Other states want to move further, giving embryos constitutional rights through what are called “personhood” bills, even though, scientifically, most will never become babies. Roe was the largest roadblock stopping these kinds of bills from becoming reality, but without it, patients in states including Georgia, Iowa, Ohio, Oklahoma, South Carolina and Nebraska, where personhood laws have been proposed but have not yet passed, could face the same questions as Hunter’s patients in Kentucky.
Both kinds of laws could affect embryos created through IVF, causing spillover effects into other areas of reproductive care. Hunter’s patients likely now have a small window before those laws become more concrete realities in Kentucky, putting into question what they can do with their own embryos. Moving embryos to another state could buy patients some time. It may also afford them something even more valuable: a choice.
“IVF is just another side of the reproductive choice coin,” Hunter said. “You think about abortion as being a woman’s right to choose ‘no.’ IVF is their right to choose ‘yes.’”
And if it comes to it, this same legislature that will if unchecked start passing bills to criminalize everyone even tangentially involved with abortion will make it a crime to transport embryos across state lines. It’s just a matter of time. Get them to another state now while you still can. The Chron has more.
