WASHINGTON, D.C. — Sen. Tammy Duckworth made history in 2018 when she became the first senator to give birth while in office. She underwent in vitro fertilization, a procedure used to assist women in getting pregnant by fertilizing an egg in a laboratory setting and implanting it in the uterus.
Now the Illinois Democrat, doctors and advocates are worried about how the Supreme Court potentially overturning a 50-year-old precedent establishing abortion rights could impact IVF, which has helped millions of people struggling with fertility issues conceive.
More than a dozen states have “trigger” laws on the books that would ban abortion if the court overturns Roe v. Wade, and some are written to state that life begins at conception or fertilization. That raises questions about what would happen with IVF, which can result in excess embryos that people sometimes discard, freeze for future use or donate to science or other people.
“Some of the procedures that my doctor performed to implant a fertilized egg into me that resulted in the destruction of some of those fertilized eggs would be considered manslaughter,” Duckworth said last week. “People who want to start families won’t be able to start families.”
IVF has become increasingly common, with the Centers for Disease Control and Prevention estimating about 2.1 percent of children are now conceived through this type of process.
While trigger laws that would ban abortion don’t specifically mention IVF, some argue they could be applied to extend legal protections to embryos. More states are expected to pass laws extending legal protections to embryos if the court overturns Roe.
These so-called personhood bills have gained popularity in conservative state legislatures over the past decade and the overturning of Roe could create new momentum among anti-abortion activists and lawmakers, said Karla Torres, senior human rights counsel for the Center for Reproductive Rights. Some personhood laws or ballot measures have previously been blocked by courts under the precedent established by Roe or a similar case called Planned Parenthood v. Casey.
“Overturning Roe would really open the door to legislative interference, not only with reproductive decision-making but also around decisions to build families through assisted reproduction, specifically IVF,” Torres said.
She said she is concerned people using IVF and their doctors could face criminal liability for miscarriages, or freezing or discarding embryos. There are an estimated 1 million frozen embryos in the U.S., according to The National Embryo Donation Center in Knoxville, Tenn.
Since a draft decision in the case Dobbs vs. Jackson Women’s Health Organization was leaked to Politico in early May, reproductive health providers say they have fielded calls from patients concerned about how changes to precedent under Roe would affect their ability to seek out common treatments like IVF.
“Our members are scared s—less,” said Sean Tipton, chief advocacy, policy and development officer at American Society for Reproductive Medicine, a health care trade organization focused on reproductive medicine.
“We’re seeing a lot of states where their restrictions include phrases like ‘every stage of human development,’ ‘from the moment of conception.’ The problem is that kind of language … equates a born child, a fertilized egg and an in vitro fertilized egg. They are very, very different.”
Mara Gandal-Powers, the director of birth control access and senior counsel at the National Women’s Law Center, noted that most people access multiple types of reproductive health services in their lifetime, such as birth control, abortions, sexually transmitted disease testing or fertility treatment. Changes to the legal rights for one path have given people pause.
“Seeing the real threat in the written word in that leaked draft, I think has put people on edge, particularly because these are things [related to] how people shape their lives,” she said. “If you’re someone who’s planning to, or in the midst of IVF or planning to use IVF in the future and you have you know, frozen eggs or frozen embryos, like your future family is at stake for you. And I think that’s really scary for people.”
Republicans have pushed for personhood legislation on both the state and federal level, though it has been a hard sell to pass.
Rep. Jody B. Hice, R-Ga., has federal legislation that would designate that each human life begins with fertilization. He has introduced this bill language four times over the past several Congresses.
“Defining life as beginning at fertilization has been part of the GOP platform for a long time now and there is always someone who introduces a bill every year,” said Jessica Arons, senior policy counsel for reproductive freedom at the American Civil Liberties Union. “I don’t know how long it will take them to get to the point where they would have the votes to pass, you know, a federal ban on abortion or a federal personhood law, but I fully expect them to try when they do have the power to do so.”
States have also seen renewed interest.
Louisiana lawmakers are considering a bill that would ban abortion and define life as beginning “from the moment of fertilization,” which some say would criminalize IVF. The bill, which advanced to the full Louisiana House last week, was amended to remove the phrase “implantation” in the definition of when life begins. It has faced opposition from other Republicans who think it goes too far and the path forward is unclear.
Oklahoma voters will consider a ballot measure this year stating that life begins at conception and “unborn persons” defined as zygotes, embryos and fetuses, have “protectable interests in life, liberty and the pursuit of happiness.”
And a similar bill introduced in Nebraska, which didn’t pass the last session, has raised similar concerns among IVF advocates.
Arons said the potential implications of one of these state-level changes could be far reaching.
“The question of when life begins is a religious and philosophical one and not a legal one. The question of when legal personhood begins is a legal question and has all sorts of implications,” she said. “Medically, pregnancy is defined as beginning at implantation of a fertilized egg, and the big reason for that is because we can’t detect pregnancy before that point.”
Experts say it can be difficult to pinpoint when fertilization actually occurs. The process of fertilization can take hours or days to complete, making it even more difficult to pinpoint.
“The question of what is going to happen with embryos is very complicated. I mean, if you define life as beginning at conception — well, embryos created through in vitro fertilization have had a joining of a sperm and an egg outside of the body,” said Jonas Swartz, an obstetrician and gynecologist at Duke Health. “Families have autonomy to discard or destroy those embryos when they don’t use them, and I don’t know how states are going to deal with that or how regulations will deal with that in the future to allow people to still have assisted reproductive technology.”
Not everyone agrees that those embryos should be able to be destroyed.
Some anti-abortion advocates and the Catholic church have opposed IVF because of the disposal of excess embryos, which they consider immoral because they believe life begins at conception.
These concerns have sparked Illinois in 2019 to pass a law stating that fertilized eggs, embryos and fetuses do not have “independent rights under the laws of this state.”
Americans United for Life, which has helped draft personhood bills introduced in state legislatures, calls IVF “unethical” and “human embryo-destroying.”
Jamie L. Manson, president of Catholics for Choice, says opposition to IVF is not universal among people of faith.
“Proposals to grant so-called ‘personhood’ to embryos present a clear threat to IVF and represent the most brazen attempt yet to enshrine hard-right Catholic ideology into civil law,” she said.