Anna Nibley Baker, a mother of four in Salt Lake City, is pretty sure she and her husband won’t have any more children. But for eight years — since the birth of her last child, conceived through in vitro fertilization (IVF) — she thought fondly of the couple’s three remaining embryos, which were frozen and stored in a university hospital.
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Today, following the Supreme Court decision in Roe v. Wade on abortion, Mme Baker, 47, like countless infertility patients and their doctors across the country, fears the fate of these embryos is slipping away from him. If states ban abortion from conception — and make no distinction between in utero or laboratory fertilization — the impact on routine infertility treatment procedures could be dramatic.
In a cycle of IVF, a field of medicine more than 40 years old and used by hundreds of thousands of straight and gay couples, singles, and surrogate mothers in the United States, the hope is to provide as many healthy embryos as possible for each to produce Patient. Doctors usually implant one or two of these embryos in the uterus and freeze the remaining ones for future use by the patient.
Measures taken by states to ban abortion raise many legal questions regarding these embryos. Will doctors still be allowed to genetically test embryos for chromosomal abnormalities or diseases like Tay-Sachs disease, Huntington’s disease and sickle cell disease to determine which embryos to implant?
patients like mme Will Baker be prevented from discarding embryos that are no longer needed? Are they more likely to be encouraged to put them up for adoption or forced to keep them forever?
If embryos fail to survive thawing for implantation, could clinics face criminal penalties?
In short, many fear that regulating unwanted pregnancies could unknowingly or unintentionally control those who desire pregnancy as well.
wave of worry
Since the closure, fertility clinics have been bombarded with frantic calls from patients asking whether they should or could legally transfer frozen embryos to states where abortion rights are guaranteed. Embryo banks and doctors have also come up with warning scenarios: A Texas infertility doctor asked if he should hire a defense attorney.
So far, the legal texts that have come into force are not explicitly aimed at embryos created in the laboratory. A new guidance document from the American Society for Reproductive Medicine, which represents a number of infertility treatment providers, analyzed 13 trigger laws and concluded that they pose no immediate threat to infertility patients and their healthcare providers. And in interviews, leading anti-abortion groups have said that embryos created by assisted reproductive technology are not currently a priority.
But legal experts warn that the status of these embryos, as well as patients and providers, could be jeopardized as some states evolve their legislation, especially if a passionate prosecutor decides to test this new territory.
Barbara Collura, president of Resolve, which represents the interests of infertility patients, said her organization has seen many legislative efforts to enforce government control over embryos. These attempts failed: “because we fought and the support of Roe c. Wade,” she pointed out. “Obviously we don’t have it anymore. »
Referring to the ruling that brought down Roe, she continued: “So we think the Dobbs ruling is kind of a green light for the legislative fanatics who want to go further. »
By using the word “pregnancy,” most trigger bans distinguish their target from an embryo being stored in a clinic. Ban in Utah where M livesme Baker, for example, places abortion in the context of “human pregnancy following implantation of a fertilized egg,” which excludes state jurisdiction over stored embryos. (This trigger law is temporarily suspended.)
And the abortion legislation, which the National Right to Life Committee upholds as a model for affiliates and state legislators, refers to “all the stages of development from the unborn child in the pregnant woman’s womb, from conception to delivery.
No priority for anti-abortion
Representatives of four national anti-abortion groups have said in interviews that while they firmly believe all embryos are human, regulating IVF embryos in the context of abortion bans has not been their primary concern.
“There’s so many other things to do in so many other areas,” said Laura Echevarria, spokeswoman for the National Committee on the Right to Life, citing parental notification laws and protection programs for pregnant women and their families. “IVF isn’t even really on our radar. »
But Kristi Hamrick, spokeswoman for Students for Life Action, a major national anti-abortion group, noted that IVF has recently become part of the conversation.
Protecting life from the start is our ultimate goal and in this new legal environment we are researching issues such as IVF, particularly considering a business model that by design ends most lives conceived in a laboratory.
Kristi Hamrick, spokeswoman for Students for Life Action
Clinics are not required to report the number of frozen embryos they store, so it’s impossible to confirm a reliable number in the United States. The most cited number, 400,000, comes from a study by Rand Corp. from 2002, but the updated total would be much larger.
Over the past year, Republican lawmakers in at least 10 states have proposed legislation that would give such frozen embryos legal “person” status, according to records obtained by Resolve. None were adopted. But policy analysts at the American Society for Reproductive Medicine said such laws that give embryos and fetuses the legal status of living humans “may become more common in the post-raw world.”
Students for Life Action’s Mr Hamrick believes “protection by design” or “individual identity” laws have a “bright future”.
And although the “trigger laws” (trigger bans) generally define abortion in relation to pregnancy, the language of some of them resonates menacingly in the world of infertility. Arkansas, for example, defines an unborn child as “an individual organism of the species Homo sapiens from fertilization to live birth.”
Sara Kraner, chief legal officer at Fairfax Cryobank, which operates embryo banks in six states, said: “We don’t know how states are going to interpret the language and nobody wants to be the test case. I can make good arguments as to why the various prohibitions do not apply to stored embryos, but I cannot guarantee that a judge will be on my side if I am sued. »
Judith Daar, dean of the Salmon P. Chase College of Law at Northern Kentucky University, pointed out that enacting state laws that would differentiate patients with infertility from those seeking abortion risks has a discriminatory effect, “since the majority of IVF patients is white, while women of color account for the majority of abortions performed in the United States.”
Mme Baker, who became a mother through adoption and IVF, is very attached to her three frozen embryos. She’s struggling to find a solution, especially now that the Supreme Court ruling on abortion is casting a shadow over her future.
She cannot imagine giving them to another couple and leaving strangers to bear and raise her children.
It can neither financially nor psychologically afford to pay for its maintenance in the long term.
Nor is she ready to see them thawed and, as she puts it, “locked up in a bowl.”
What is important to Mme Baker, an intensive care unit nurse, is that she has the right to make decisions that she sees as intimate and highly individual. She doesn’t think she could have an abortion if her life weren’t in danger, but she also feels the choice should be hers.
So she doesn’t want state legislators to determine the fate of her embryos.
“You are a part of me,” said M.me Baker. Nobody but my husband and I should have the right to decide what happens to them. »
This article was originally published in New York Times.