Stephanie Reyes has spent years trying to start a family. But now, as she and her husband finally embark on their first round of in vitro fertilization, she’s facing a new obstacle: the Supreme Court.
Reyes and her husband have been undergoing treatment at Walter Reed National Military Medical Center in Maryland, where they currently live. “Lots of early mornings, ultrasounds and blood work,” she said. “We’re fortunate so far because our prognosis is looking really good. … I anticipate we’re going to have a lot of embryos.”
But with the court poised to strike down Roe v. Wade in the next several weeks, the logistics of Reyes’ family planning have suddenly become far more complicated. Her husband is in the Coast Guard, and the couple will move within the next year, with little say in where they end up. “Originally our game plan was to take the embryos with us wherever we go,” Reyes said. “Now, I don’t know.”
Reyes worries they may end up in a state that restricts what she can do with her embryos. Many of the states with “trigger” laws banning most abortions have also put forward bills that define life as beginning at conception or fertilization. Without Roe, experts worry that such laws could be interpreted in ways that grant fertilized human eggs legal rights and protections, rendering integral parts of the IVF process illegal. Even if states carve out exemptions for IVF, as many experts expect, the cloud of uncertainty around the legality of the practice adds another layer of stress to what can be a taxing and expensive process.
“Going through IVF is often a traumatic and uncertain time,” said Stephanie Boys, an associate professor of social work at Indiana University. “Laws like this just add to the stress around fertility issues.”
For now, Reyes and her husband plan to keep any embryos in Maryland, where abortion is likely to remain legal no matter how the Supreme Court rules. She’ll travel back from wherever they end up, adding expense to an already expensive process they’re paying for without insurance. Walter Reed offers a steep discount, $8,000 per round, while they’d be paying about $20,000 at a civilian clinic, she said.
“We’re trying to grow our family, and I hate that the first thing, among other things, we need to think about is that overturning Roe might not even make that a possibility,” she said.
Why IVF may be threatened
The debate swirling around IVF treatment hinges on defining when life begins — and whether that can happen in a petri dish.
IVF is a last resort for the approximately 1 in 8 couples affected by infertility. The process often begins with a person taking medication to stimulate mature egg production, which can take several months, after which mature eggs are surgically removed from the ovaries. Then, eggs and sperm cells are combined in a laboratory dish, where fertilization happens. The fertilized egg cells, or embryos, are left to develop for a few days, when they’re ready to either be implanted into the uterus, frozen for future use or discarded. Achieving a successful pregnancy often requires more embryos than can be used, and many people need multiple transfers.
“IVF is grueling,” said Kristen Pleasant, a lawyer in Louisiana who has gone through four full rounds without a successful pregnancy. “It’s a journey with lots of emotions and disappointments, but we’re still continuing to pursue our dream of building our family. We didn’t expect that Roe v. Wade was going to have this sort of impact.”
Only about 55 percent of people under 35 who try IVF become pregnant after the first round of egg retrieval, and rates decline with age. To maximize chances of success, fertility doctors often create more embryos than can be used (often around 10, depending on egg retrieval), since some portion would likely fail to develop if implanted. In recent years, testing of frozen embryos has allowed doctors to screen for cellular or genetic anomalies that could result in nonviable pregnancies, and then discard them.
That standard practice could spell legal trouble if anti-abortion laws define life as beginning at fertilization, which would grant a fertilized egg the same legal rights as a 2-year-old, said Sean Tipton, chief advocacy, policy and development officer at the American Society for Reproductive Medicine. “You can say that an in vitro fertilized egg and a 2-year-old child are legally equivalent,” he said. “But they are decidedly not biologically equivalent.”
Six states have introduced bills that would ban abortion by establishing fetal personhood this year, and Oklahoma’s version cleared the senate in March.
If fertilized eggs are deemed persons, it may become illegal to freeze them for later use. That would also preclude certain kinds of genetic testing, which must be done on frozen embryos. Lauren, a woman in Grand Rapids, Michigan, and her husband decided to use IVF to have children not because of infertility, but because she carries a version of the BRCA2 gene that increases her risk of developing breast cancer by around 85 percent. “IVF is the only route for kids for us because we don’t want to pass on this genetic mutation,” said Lauren, who asked to withhold her last name for privacy reasons. “But if there’s constitutional rights at the moment of fertilization, we can’t even test those embryos anymore, because they can’t be frozen to send off to the lab.”
So-called personhood laws that include the products of IVF fail to recognize a key distinction between an embryo in a petri dish and one in a womb, said Jane Maienschein, director of the Center for Biology and Society at Arizona State University. “If this fertilized egg is in the lab, then it does not have the potential to grow into a full human being without being implanted,” she said.
Some trigger laws exempt IVF by recognizing that distinction. In Missouri, for instance, abortion is defined as destroying the life of an embryo or fetus in the womb. Other states, such as Oklahoma, use fuzzier language, like “conception,” Maienschein said, that could apply to fertilization inside or outside the womb.
Some recent bills seem to be written to explicitly include IVF, said Seema Mohapatra, a law professor at Southern Methodist University who specializes in assisted reproduction. Republican lawmakers in Louisiana introduced a bill that would criminalize abortion and grant constitutional rights to “all unborn children from the moment of fertilization.”
“That specifically took out [of existing law] language about implantation,” Mohapatra said. The bill now appears to be dead, as the Republican governor came out against it last week, but similar bills will likely continue popping up, Mohapatra said, and threaten access to IVF. “There’s a lot of indications that the end goal is fetal personhood,” she said, which some on the religious right want to extend to laboratory-fertilized eggs.
Texas is already limiting options
The battle over whether abortion bans include IVF will likely play out for years in the courts, as the lucrative fertility industry lobbies against more restrictive bills. But some existing laws limiting abortion are already having an effect.
Texas’ S.B. 8, which bans abortion after detection of cardiac activity, or roughly six weeks, has effectively halted a practice called “selective reduction.” In some cases, doctors performing IVF transfer more than one embryo in the womb to maximize chances of success. Anything beyond a twin pregnancy can be risky, so fetuses can be “selectively reduced” to reduce problems. And there are cases when developmental abnormalities that only become apparent after six weeks can also threaten the lives of the other fetuses or the mother. In such cases, which are uncommon, the abnormal fetus is removed for the health of the mother and other fetuses.
But under the Texas law, enacted late last year, selective reductions may count as abortion, and doctors in the state no longer perform them. That’s because those who aid in or perform an abortion can be sued by any citizen under the new law.
“These people are seeking a healthy pregnancy and birth and need this procedure,” Mohapatra said. And despite ongoing litigation challenging the law, the procedure “isn’t being done because of fears about civil penalties.”
The Supreme Court hasn’t issued a final decision on Roe, but the uncertainty around how IVF could be impacted is causing much worry in the infertility community, said Elizabeth Pritts, medical director of the Wisconsin Fertility Institute.
“I’m hearing a lot of concern from my patients,” she said. “I’ve had probably three calls in the last couple of weeks where the patient said ‘Look, we don’t know what’s going to happen, let’s just do IVF and get me knocked up,’” she said, instead of trying less invasive intrauterine insemination first.
Lauren Pusateri-Nilson recently learned that the last of eight embryos she and her husband obtained from IVF won’t result in a viable pregnancy. She’s currently waiting to miscarry, but feels pressured to start the process all over again. “It’s been really stressful,” she said. “I haven’t really been able to mourn going through a miscarriage.”
The Pennsylvania couple has a 22-month-old daughter from IVF and wants to continue growing their family. A job change means their medical insurance will no longer cover the treatment, which can cost $12,000 to $25,000 for one round.
“My mind is on the financial aspect, but I feel like we need to hurry up. Gov. [Tom] Wolf has vetoed any anti-abortion bills, but we have elections coming up,” Pusateri-Nilson said. On Tuesday, Republican and staunch abortion opponent Doug Mastriano won Pennsylvania’s gubernatorial primary race.
“I just don’t know where things will go,” Pusateri-Nilson said. “But it does make me paranoid enough to feel like I need to get going.”
An earlier version of this story misstated the status of Lauren Pusateri-Nilson's pregnancy and the link between BRCA2 and breast cancer. This version has been corrected.
Thanks to Lillian Barkley for copy editing this article.