Roe vs. Wade 2 weeks on – the impact on IVF and fertility care

Eloise Edington  |   14 Jul 2022

Words by Jessie Day

Following the momentous call in the Supreme Court to overturn Roe vs. Wade, we reached out to our Fertility Help Hub Instagram community, getting your thoughts and concerns for IVF and fertility care in general. 

Almost 75% of respondents are worried about IVF care, in the aftermath of new anti-abortion legislation. And almost half believe that the decision could go on to affect IVF in their state. 

Now that the courtroom dust has settled, what do we know about the Roe vs. Wade overturn, and its impact on fertility care? These are the main topics to be aware of, which we’ll cover in more detail below: 

  • Genetic testing, and other forms of investigation/screening
  • Embryo freezing 
  • Harming an embryo unintentionally (e.g during freezing)
  • Interstate embryo transfer (and beyond) 
  • Personhood rights, and the status of an embryo 

1. Nothing explicit on IVF 

Right now, there’s nothing to call out IVF, or embryos created in the lab, and abortion is still the primary target for new legislation. Legally-speaking, fertility treatment is still unaffected in all 50 states and Washington D.C. 

But organizations like RESOLVE: The National Infertility Association, have called out unclear language as a threat to the future of in vitro embryology and tech, as well as the potential for specific legal targeting. 

A report from the American Society for Reproductive Medicine, analyzing 13 of the ‘trigger laws’, confirms that the legislation doesn’t currently pose a threat to patients or fertility treatment/care providers. But clinics are concerned, and inundated with questions from current and prospective patients alike, as well as donors, surrogates and other key players in the wider fertility community. 

Our friends and partners at Californian fertility clinic – Laurel Fertility Carehave released a statement on this point, saying, 

“This impacts our patients in a lot of different ways; we have already had patients who have asked about it, specifically around surrogacy. Patients are concerned about what their choices will be: where do they go? Can they feel comfortable and travel for their family building?”

2. Patients are contacting their clinics 

The New York Times has reported a surge in clinic enquiries, since Roe vs. Wade overturned. For patients, the big concerns are existing frozen embryos and future care options. 

At the same time, thousands of clinics have issued their own statements, and many are encouraging patients to be proactive, and lobby for IVF exceptions to abortion bans. 

South Carolina and Alabama have specifically exempted IVF procedures from their abortion bans. The (multi) million dollar question is, will others do the same?

3. Industry matters

The CDC’s 2006-2010 National Survey of Family Growth estimates that one in eight couples struggle with fertility. And crucially, that 7.4 million women (11.9%) have received fertility treatment in their lifetime. 

Fertility treatment is a huge industry and calling card for the USA. And this does matter in the world of politics. It’s also indiscriminate, affecting all sections of society. It brings stark realities and difficult choices close to home, for high profile figures and the general public alike. 

The LA Times noted in an op-ed last week, IVF services are a multibillion-dollar industry. And that revenue and jobs ‘do carry political weight’. This could mean more specific, focused laws, designed to protect fertility treatment, clinics and patients. 

4. Which are the trigger states?

In terms of an abortion ban (so not currently affecting IVF or fertility treatment), these are the 13 ‘trigger states’ to watch, in the aftermath of Roe vs. Wade’s overturn: 

  • Arkansas 
  • Idaho
  • Kentucky
  • Louisiana
  • Mississippi
  • Missouri
  • North Dakota
  • Oklahoma
  • South Dakota
  • Tennessee
  • Texas
  • Utah
  • Wyoming 

In some states, new abortion-banning legislation is now in effect, including Arkansas, Missouri, South Dakota and Wyoming.

A few states operate with trigger laws which take 30 days to come into effect after the overturn date, and others are only enforceable with governor or attorney general certification.

5. Some clinics have started moving embryos 

Based on what’s happening in each trigger state, some clinics have started the process of shipping cryopreserved embryos to ‘safe states’. 

New England and New York are popular destinations, with some clinics proactively starting their own embryo transfer programs. 

Dr Drew Tortoriello from Sher Fertility Solutions touched base with us to add – 

“We are thankful to report that our ability to provide fertility care in the IVF arena remains unaffected and unchallenged in New York where we practice. We are here to provide comprehensive fertility care and counsel to all women and couples who desire some assistance or guidance.”

6. Selective reduction is a primary concern

From the lawmakers’ perspective, selective reduction is probably closest to abortion. And it’s this which makes it a potential target, in any future IVF-restrictive legislation. 

IVF can often result in a ‘multiple’ pregnancy. And by medical definition, this bumps the pregnancy into the ‘high risk’ category. Selective reduction can be used to discard an embryo(s), to lower the risks for mother and baby(ies). 

If lawmakers go after selective reduction as the next ‘natural step’ in the evolution of Dobbs vs. Jackson Women’s Health Organization (the decision which overturned Roe vs. Wade), patients could be forced to carry multiples to term, regardless of the risks involved. Or, IVF options could be drastically limited, with clinics only able to transfer the minimum of embryos. 

Continuing the point on risk to mother and pregnancy, there’s also deep concern within the fertility community for circumstances where medical intervention is necessary, to prevent injury or loss of the mother’s life. Dr Brown of Brown Fertility, who’ve supported patients in Florida and Southeast Georgia for over 21 years, stresses in a full video statement – 

“We’re very respectful of life, but there are circumstances where the pregnancy is not a life, and it can only harm the woman, and there’s medical intervention necessary. So we want to be involved with the regulators, and when you define life.”

7. Preimplantation tests and discarding 

Genetic risk factors are a big focus for IVF patients and fertility clinics. Preimplantation testing is used to select embryos which carry the lowest risks, with screening and testing often resulting in discarding embryos. Scrapping Roe vs. Wade puts preimplantation tactics under a more intense lens. 

Embryo freezing for future use also poses serious questions, both because of risks to the embryo in the process, and what the status of that frozen embryo would be. If life starts at fertilization, would patients and facilities be forced to keep absolutely everything in storage, indefinitely? 

8. Interstate fertility travel 

Patients who can’t access fertility care in their own state will be forced to travel. But not only does this become a question of means (in an already-expensive process), it’s also another dive into legality – The Washington Post confirmed that influential anti-abortion groups are already directing campaigns to ban interstate fertility travel, in the wake of Roe vs. Wade’s overturn. 

The point is that a patient’s home state may have the ultimate say on whether their IVF or fertility procedure is legal. Not the state they’re traveling into. This area is still being established, but it’s an aspect to bear in mind. 

We picked up with ART Compass, the leading IVF lab management software platform, who noted –  

“The fall of Roe vs. Wade signals that IVF could become illegal or severely restricted, leading to higher costs, less accessibility, and lower chances of successful, safe pregnancies. ART Compass recognizes each person’s individual choice to pursue reproduction. And we intend to support those people with fertility disadvantages which may obstruct the likelihood of conception and safe delivery.”

Read ART Compass’ full Roe vs. Wade statement

Where does this leave the fertility community?

The concern is that these grey areas could fuel the fire for more restrictive fertility treatment and IVF laws, in the months and years following the Roe vs. Wade overturn. 

The Fertility Help Hub team are dedicated to providing information and support in your TTC journey. 

As long as there are decisions to be made at any level, from the Supreme Court to your own family, we’re here to keep you up-to-date and connected. 

Want to have a say on topics like Roe vs. Wade? Jump to our Fertility Squad and Insta for authentic, inclusive conversation, and supportive info.

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