Protecting access to infertility treatment in a post-Dobbs United States

In their prescient study on patient attitudes and concerns regarding fertility treatment in the wake of the Dobbs decision, Sharifi and colleagues center the perspectives of patients actively undergoing treatment. The study, conducted prior to the Alabama Supreme Court decision that equated embryos in the laboratory to living children, is even more relevant and important now. This Commentary contextualizes this study by describing the current political landscape for in vitro fertilization (IVF) in the United States (US). It then highlights key insights from the paper, which can be used to help prepare infertility providers, patients, and advocates for future regulatory challenges.

In February, the Alabama Supreme Court ruled in LePage v. Center for Reproductive Medicine that embryos outside the body are legally equivalent to children. Using the term “cryogenic nursery” to describe embryo storage tanks, the majority opinion found that if an embryo were accidentally destroyed, clinics could be held civilly liable for the death of a child. Immediately following the decision, multiple IVF clinics in Alabama paused treatments. A national conversation about the place of IVF in a post-Dobbs world erupted and there was an outpouring of sympathy for Alabama IVF patients caught in the middle. The Alabama state legislature then rushed to pass a law protecting IVF providers from criminal or civil liability for death or damage to embryos. While IVF clinics in Alabama have since resumed treatments, the new law has been widely criticized as both an under- and over-reaction to the LePage decision [1]. It provides complete immunity to clinics and banks for the destruction of embryos, limiting the recourse of patients who suffer the accidental loss of their embryos. At the same time, it fails to address the legal issue at the heart of the LePage decision: whether in vitro embryos should be treated as living children.

Unfortunately, the LePage decision is only the tip of the iceberg. For years, Republican state legislators have been introducing personhood bills, some of which seek to establish personhood at the time of conception [2]. One state — Louisiana — already has such a law in effect, with significant consequences for infertility patients. Embryos created in Louisiana IVF clinics are routinely shipped out of state in order to avoid any legal fallout from destroying embryos, accidentally or on purpose [3]. Patients in Louisiana face higher costs and uncertainty regarding their embryos, increasing the burden of an already expensive and stressful process. If more states pass embryonic personhood laws, transferring embryos out of state may become even more difficult.

While some politicians on both sides of the aisle have rallied to support the continued use of IVF, others have doubled down on the position that embryos are living people that should not be destroyed, regardless of the ramifications for IVF practice [4]. Yet others appear to have a deep misunderstanding of the impact that treating embryos in the lab like living children will have on IVF. If we truly cannot destroy embryos, then embryos will need to be stored indefinitely. The cost of storage will inevitably be passed on to patients, many of whom already cannot afford IVF. Alternatively, we could limit the number of embryos that patients are able to make at once — for example, by storing oocytes rather than embryos and creating embryos one at a time. This would render the process much less efficient and more prolonged for patients who are eager to have children and already feel the pressure of their biological clocks. Particularly for patients in need of genetic testing for their embryos, creating and testing only one embryo at a time would be highly impractical. Another alternative would be to transfer multiple embryos at once, risking multiple pregnancies that worsen both maternal and fetal outcomes. In other words, while the IVF industry may not be completely destroyed by laws proclaiming embryonic personhood, it would be crippled. Patients would be forced to choose between more expensive or riskier options to create a child by assisted reproduction, and the most well-off would seek care elsewhere. Lawmakers who feel that embryonic personhood and IVF are not mutually exclusive should reconsider.

Sharifi  et al. elucidate patient fears about pursing IVF in a post-Dobbs political climate. Many participants in their study worried about being able to control the fate of their excess embryos, including whether they could be discarded. Some were more interested in pursuing pre-implantation genetic testing, presumably out of concern that they would not be permitted to have an abortion if a fetal anomaly were discovered later. The majority were concerned about using a gestational carrier in a state with restricted access to abortion. The patient comments were particularly powerful. One participant said that the cost of IVF was a significant hurdle for her, which made it important to create as many embryos as possible at once. Another said she was worried IVF would be limited in the future, so she was considering transferring multiple embryos in order to have more children sooner, even though she is already a high-risk patient. A third said she felt lucky she could travel to another country to obtain IVF, if needed, but worried about patients who are less well-off. We have to wonder how participants feel now, after the events in Alabama.

Beyond ongoing efforts to declare embryos “persons,” the national debate surrounding the Alabama Supreme Court decision has generated increased scrutiny of the practice of IVF in the US generally [5]. Although the term “Wild West” has been used to describe reproductive medicine for decades [6], it seems as though some federal and state lawmakers may now seize the opportunity to increase regulation. Some are considering legislation that regulates how embryos are created and stored, while others are proposing bills to protect access to IVF. One way or another, it seems doubtful that political interest in IVF will simply dissipate and more likely that IVF will become more regulated in the US.

Leading up to the Dobbs decision, and in the years since, abortion rights advocates have pro-actively sought to establish laws protecting access to abortion. Now it is time for infertility providers, patients, and patient representatives to work with lawmakers to ensure that increased regulation of IVF does not translate into decreased access to treatment. It would be profoundly ironic if, in an effort to protect in vitro embryos, lawmakers ultimately made it harder for would-be parents to use IVF to have children. All our patients — like the patients in the Sharifi et al., study — are counting on us.

Declarations

Conflict of interest

The author declares no competing interests.