The June 24, 2022, Supreme Court ruling in Dobbs shocked many in our country to the core, reversing what many believed were fundamental rights of Americans. Dobbs unequivocally overturned Roe v. Wade, removing the countrywide protection for a woman to choose to continue a pregnancy or not. Instead, the question now lies with each state to determine whether to protect or, alternatively, remove or limit the ability to obtain an abortion.
The impact of the Dobbs opinion doesn’t stop with abortion, as if that weren’t a big-enough deal. Although the Justices appear at points to attempt to limit their holding to that topic, the disdain for abortion rights may spell trouble for other privacy interests. In a concurrence, Justice Thomas specifically invited a reconsideration of the Supreme Court’s precedents striking down anti-sodomy laws, restrictions on same-sex marriage, and restrictions on the right to contraception.
What does all of this mean for IVF and embryos? In short, we don’t know yet. A few data points are hopeful, but overall, the seismic shift leaves serious concerns. These are some of the anxious questions I’ve seen raised in the past few weeks by IVF providers and patients.
Will I be forced to transfer my embryos to my body against my wishes? Talk about “Handmaid’s Tale” come to life, this is a terrifying thought. The end of Roe will mean that some states embrace a broad definition of human life, encompassing not just fetuses but perhaps even embryos stored in a laboratory. Some worry that if a state’s laws define personhood to begin at the fertilization of an egg, all of their cryopreserved embryos will be deemed to be persons. Does the IVF patient then have the same obligations to their embryos as they would to a born child? Could a failure to meet those obligations result in criminal prosecution?
The good news is that this isn’t the first time we’ve seen embryo personhood laws in action, so we might know more than we think we do about how these laws might effect IVF. Specifically, Louisiana presently has a law defining embryos as “juridical persons” with the right to sue and be sued. Yet fertility treatments, including IVF, have continued to be offered in the state. Nevertheless, disposition options for IVF patients in Louisiana are limited. Patients may transfer embryos for their own conception purposes, donate embryos to others for conception purposes, or store embryos indefinitely. But despite those limitations, we have never seen anyone being forced to transfer their embryos for conception purposes, with no other options. We have also not seen IVF patients in Louisiana being prohibited from moving their embryos to another state, where their disposition options might be widened. At least we haven’t seen that yet.
Will someone else be able to use my embryos against my wishes? This is a legitimate concern. Back in 2018, Arizona passed a law requiring a judge presiding over a divorce in the state, where the couple has frozen embryos, to ignore any written disposition agreement that the couple may have entered into prior to forming the embryos. Instead the judge must award the embryos to the spouse more likely to bring them to birth.
Up until a few weeks ago I, as well as many attorneys in this area, would have argued that it was only a matter of time until the Arizona law was challenged and found unconstitutional based on its infringement of our fundamental right to reproductive autonomy. Only it is not clear if that is still a right.
In good news, we see other states — like Colorado — still recognizing a fundamental right to reproductive autonomy when analyzing embryo disputes.
Step 1, Abortion Bans. Step 2, IVF Bans?
The recently effective strict abortion ban in Oklahoma defines an “unborn child” as a “human fetus or embryo in any state of gestation from fertilization until birth,” thus criminalizing abortion from the earliest possible stage. At least one co-sponsor of the law, Oklahoma Sen. Julie Daniels, argued that the law addressed and defined abortions in such a way as to not apply to the destruction of frozen embryos. So IVF is supposedly safe in Oklahoma. For now.
So, Is It Time To Move My Embryos?
Given the sheer quantity of people in the United States who need to turn to IVF to have children, as well as those that support them, it’s hard to imagine that the law would actually ban IVF. But the truth is that the ability to access abortion also has enjoyed strong popular support, with some sources reporting as many as 85% of Americans supporting abortion access in some or all situations. And yet, it looks like a majority of states may be sharply curtailing those rights in a manner inconsistent with popular opinion.
If not threatening access to IVF entirely, laws restricting disposition options — such as prohibiting the discarding of embryos — or more laws like Arizona’s, requiring embryos to go to the person most likely to bring them to birth (even if against the will or interests of one of the parties) may become much more popular.
I want to say “don’t panic,” but I am pretty sure that is what passengers on the Titanic were told. If I had embryos in a state looking to define personhood as “fertilization of an egg,” I would probably be considering all my options carefully … including a move to a state more friendly toward reproductive choice.
Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at [email protected].