The Impact of Dobbs on Assisted Reproductive Technologies: Does It Matter Where Life Begins?
By Judith Daar
In February 2023, a Louisville lawmaker introduced a bill that would prosecute women for criminal homicide for having an abortion. The Kentucky Prenatal Equal Protection Act, introduced by Republican Representative Emily Callaway, extends the state’s criminal abortion law to pregnant women for any termination not linked to a life-threatening condition or spontaneous miscarriage. Declaring, “innocent human life, created in the image of God, should be equally protected under the laws from fertilization to natural death,” the bill elevates the rights of the unborn over any rights held by the pregnant woman to control her reproductive future. Now sanctioned in a post-Dobbs rational basis world, this bill and others like it pose potential roadblocks to other medical interactions with unborn persons, notably in vitro fertilization (IVF) and related assisted reproductive technologies.
According to the Guttmacher Institute, 12 states ban abortion from conception onward, and others are considering so doing. In the context of fertility treatment, in which embryos are formed, stored, and (sometimes) discarded in a laboratory setting, the question arises – Does situs matter? If a state defines an unborn child as “human beings from the moment of conception” and bans “the act of using…any means…to destroy the life of the embryo,” as in Missouri, would a reproductive endocrinologist be subject to legal liability for discarding embryos in an IVF cycle? The technologies used to induce pregnancy now face curtailment based on broad-based statutes aimed at punishing pregnancy termination.
At least four features of IVF face scrutiny and possible restriction in the face of growing embryo protection regulation – embryo discard, embryo cryopreservation, preimplantation genetic testing (PGT), and selective reduction of multiple pregnancy. While selective reduction is vanishingly rare, the other three are routinely performed in IVF cycles. Patients direct discard of their embryos for a variety of reasons, including the discovery of genetic anomalies via PGT, or the completion of their family from prior successful cycles. Since restrictive abortion laws require a nexus between the destruction of “unborn life” and some threat to the pregnant woman’s life or health, embryo destruction done to avoid birth of an unhealthy child or to manage the size of one’s family would not meet these narrow exceptions. Currently, routine IVF embryo discard is shielded from capture in abortion regulation by the laws’ focus on “procedure[s] upon a pregnant woman.” The situs of the unimplanted IVF embryo outside the body secures its escape from the reach of abortion laws, at least for now.
Embryo cryopreservation (freezing for later use, even for decades) and PGT (biopsy of a 5-day old embryo to test for genetic disorders) face scrutiny because they pose potential risks to the developing embryo without a sufficient countervailing benefit. In some instances, frozen embryos are thawed for transfer into the uterus, but often they languish in storage with no plan for their ultimate disposition. The use of PGT is often for the purpose of deselecting embryos found to contain chromosomal aneuploidy or genetic mutation, potentially provoking application of laws prohibiting abortion on the basis of fetal anomaly. In a post-Dobbs world elevating embryo protection over the interests of the individuals responsible for their creation, neither freezing nor testing balance the weight of benefit in favor of the embryo. True, both techniques can, and do, lead to transfer of some embryos into the uterus. But if embryo protection laws model the Kentucky bill in which women are imprisoned for ending their pregnancies, embryo harm, not its occasional implantation, will surely be targeted.
Selective reduction poses interesting legal questions as a straddler between fetal demise and pregnancy termination. Performed toward the end of the first trimester to reduce a multiple pregnancy in order to enhance the health of the remaining fetuses, the technique kills an unborn child but (ideally) does not terminate the pregnancy. Today’s abortion laws conflate the death of an unborn child with pregnancy termination, such that an act to cause one is presumed to result in the other, without exception. For purposes of selective reduction, and possibly embryo discard, statutory ordering of the two acts could be important. For example, in Texas, abortion is defined as “an act intending to cause the death of an unborn child of a woman known to be pregnant.” Presumably selective reduction would fall within this prohibition. Alternatively, in Idaho, criminal abortion involves “the use of any means to intentionally terminate the clinically diagnosable pregnancy of a woman with knowledge…those means will…cause the death of the unborn child.” With the primary emphasis on pregnancy termination, a procedure to enhance – not end – a pregnancy might escape prosecution.
Advocates emboldened by the dismantling of constitutional guardrails around reproductive decision-making have yet to publicly embrace extending restrictions to include fertility treatment. In fact, a few states expressly exempt IVF from newly enacted abortion laws. Looking ahead, it may be that the situs of IVF embryos outside the body, and thus not (yet) linked to pregnancy, will stave off legislation curtailing routine aspects of this medical treatment. As others have noted, as a pronatalist family formation option widely availed across the political spectrum, IVF is likely to escape the ravages of regulated scarcity now reigning down on swaths of American women. Fertility treatments have their own unjust scarcity wrought by high cost and low insurance coverage, a topic for another day.
The future face of IVF in the wake of Dobbs may come from unlikely allies. Unabashed abortion foe and champion of the anti-choice movement former Vice President Mike Pence revealed in a recent interview he and his wife turned to IVF after experiencing infertility. Speaking about his joy from parenting three children, Mr. Pence added, “I fully support fertility treatments and I think they deserve the protection of the law.” Translation from the millions of IVF parents in the U.S. – focus on our children, not on our embryos. The near one million people who rely on safe and reasonable access to abortion each year lack these emotionally compelling optics, even if their lives are aided by the use of reproductive medicine. Criminalizing abortion while privileging IVF, if that is the road ahead, wreaks of reproductive injustice. Such injustice only can be addressed by enhancing respect and access for all family planning choices.
Judith Daar is the Ambassador Patricia L. Herbold Dean and Professor of Law at Northern Kentucky University Chase College of Law.
