Arkansas’ abortion ban went into effect Friday. It defines “unborn child” as any embryo that is fertilized before fertilization. Dean Moutos, Arkansas Fertility & Gynecology’s sole provider for in vitro fertilization, was left with many questions.
Moutos was immediately curious about the possibility of IVF. Although IVF is not mentioned in the law, he wondered if frozen embryos from his patients could be considered unborn children. Is it possible to consider a termination of those embryos?
He said, “I don’t know if the people who wrote the law fully understood its downstream effects.” “But everyone across the country, even us in Arkansas is concerned about its potential.”
Arkansas’ office of the state attorney general Leslie Rutledge stated to NBC News that the ban had no impact on IVF treatments. Oklahoma and Alabama attorneys general said the exact same thing about their laws.
Other states haven’t yet made clear how their abortion bans apply, and most abortion laws don’t address frozen embryos. Some fertility clinics and lawyers aren’t convinced the new restrictions will affect the IVF process.
What happens to IVF embryos stored in freezers after pre-implantation? Patients and couples can decide whether to throw them out or not. Susan Crockin is a Georgetown legal scholar and a member of Georgetown’s O’Neill Institute for National and Global Health Law.
She said, “The devil is always in the details.” It will depend on the interpretation of the statute’s language and the persistence of individual prosecutors.
IVF is the process of combining eggs and sperm to create embryos. The embryos are then implanted in a person’s body. Many patients choose to keep additional frozen embryos in case they need them for future IVF cycles. IVF can be used to solve fertility problems or to prevent the passing of a genetic disorder. Embryos can also be tested before they are implanted.
Crockin stated that most existing or anticipated state abortion bans specifically refer to terminating a pregnancy. Therefore, they should not apply to IVF. However, some lawyers are concerned about the “personhood” laws which treat fertilized eggs as human beings.
If a law was written to establish the personhood of fertilized eggs or embryos, then discarding embryos would be against that law. It would be considered homicide,” stated Priscilla Smock, Yale Law School’s director of the Program for the Study of Reproductive Justice.
Legal experts suggested that this might also apply to embryos damaged in a clinic or lab. In some cases, patients might have to give up control of the embryo to a clinic or doctor. This is Louisiana law.
Karla Torres (senior human rights counsel at Center for Reproductive Rights) stated that if legislators pass personhood laws, it will significantly undermine IVF patients’ ability to make decisions about their care, and what to do with frozen embryos.
Inquiries about whether abortion bans in Kentucky, Missouri and South Dakota could impact IVF were not answered by Texas’s attorney general office. North Dakota’s attorney General Office referred NBC News a letter enforcing its ban, but declined to comment further. Tennessee directed NBC News at the trigger language, while Mississippi pointed to a section in the state code.
The Idaho attorney general’s office stated that it would be up to the 44 county prosecutors to decide how to enforce the abortion ban. It is expected to take effect in 30 days.
The office stated in a statement that it would defer to the prosecutors any questions regarding potential enforcement.
Kolin Ozonian is the CEO of Global Premier Fertility. This company manages fertility clinics.
Do you ship embryos from one state to another and then throw them away? Are they kept in long-term storage? Are the parents willing to continue paying? Is the clinic able to pay for it? He said that all those questions are being figured out by a lot lawyers, businessmen and doctors.”
Crockin stated that there are legal issues about whether state laws on personhood could limit the shipment of embryos across state borders.
The Sanford Health medical system in North Dakota and South Dakota announced that it has appointed its ethics committee to assist IVF providers in deciding what next. South Dakota passed its abortion ban Friday. North Dakota’s ban will take effect July 28.
“We are carefully evaluating the potential impact of the Supreme Court’s decision on our ability to deliver medically required care to our patients,” stated Jeremy Cauwels (Sanford Health’s chief doctor).
To avoid legal issues around IVF and abortion bans, it is possible to freeze embryos and sperm. Moutos stated that this would be less effective and less likely to lead to pregnancy.
He said that he is reassured by the Arkansas attorney general’s statement, but he still advises patients to refrain from discarding embryos, until he consults with legal professionals.
He stated, “We don’t want to do any thing that would jeopardize the practice of our patients or put them at risk.”
Ozonian stated that if abortion laws are enacted to restrict the disposal of embryos, IVF treatment could become more costly as clinics and patients may have to pay long-term embryo storage. According to a 2014 study, IVF treatment costs on average $19,000
If they are concerned about legal repercussions and significantly higher costs, companies may be less likely to pay for IVF costs for their employees.
This is not to mention the emotional and physical toll that egg extraction, implantation, and other aspects of IVF can have on those who are going through it.
The process is very lonely. It is emotionally draining and difficult at all levels,” Maria CostantiniFerrando, Reproductive Medicine Associates in New Jersey, said. “Now, you need to worry about: what are the officials saying?” What will the government do? It’s creating a huge stress component that was not there before.”
Ozonian stated that IVF clinics in California that are partnered with his company have already heard prospective patients express concern about their ability to undergo treatment due to some changes in the law.
Some legal experts question whether future laws could have an impact on IVF.
Crockin stated, “The thing about trigger laws that I worry about is that they are the tip of an iceberg.” They are the ones people considered before the Supreme Court made this decision. We’re hearing a lot of anti-abortion advocates expressing great interest in pushing the law further.
Sonia Sotomayor, Elena Kagan, and Stephen Breyer, Supreme Court Justices, mentioned this possibility in their Friday dissenting opinions. They wrote that the Court could be asked questions about the application regulations for abortion to medical care that most people consider as being quite different from abortion, including IVF.
