Motherhood Series: Where IVF Fits in a Post-Roe World

This article mentions sexual assault.

In the months since the overturning of Roe v. Wade, it is clear that womb-owners’ bodily autonomy and the right to remain child-free are on the line as more states have restricted access to safe abortion measures. What remains unclear is how these new laws will affect want-to-be parents who might experience trouble conceiving or intentionally choosing not to conceive a biologically genetic child. With the many innovations to assisted reproductive technology, genetic testing, and the push for more mental health counseling across the board, it is difficult to reconcile how returning to originalist readings of the Constitution will accommodate these new and developing technologies. The research on this intersection of abortion and assisted reproductive technology is severely understudied and underprioritized. Thus, this is very much an evolving topic. As such, I will do my best to discuss the current situation and evidence-based theories, as well as propose a sort of compromise based on this, while holding that the research on this topic is still developing. 

As of 2019, 2% of all children in America are conceived via In Vitro Fertilization (IVF). This attributes for a significant portion of the population and is therefore necessary to be considered in discussions surrounding abortion rights. Generally, IVF decisions have been left up to the states. This is true now more than ever because of the Supreme Court decision giving states the right to decide matters on abortion for their constituents. For instance, if a couple divorces while they have frozen embryos, enforcement varies on the basis of whether one partner will be permitted to procreate, or if instead, the state will enforce the “right not to procreate” through embryo destruction. Louisiana actually already treats in vitro fertilized ovums as legal people. By this logic, it’s not out of the realm of possibility to think that states might take these enforcement restrictions even further now. This might look like Germany’s laws in which the creation of over three embryos per IVF cycle is prohibited, as a means of reducing the amount of embryo destruction. 

Personal and institutional beliefs about IVF tend to vary as well. As IVF is a more recent advancement than abortion, it definitely was not foreseen by the founding fathers, and therefore holding it to the standards needed for originalist or textualist viewpoints seems unreasonable. While the intensity of beliefs on this issue is less than that of abortion, constituents still care deeply about it. This is potentially because of the sensitive nature of IVF being that those needing it are those genuinely wanting a child and struggling to conceive. Another cause of this may be the eventual potential for opponents to be in need of the procedure. In this way, putting oneself in another’s shoes suddenly makes the repercussions of the law seem much more daunting, personal, and urgent. In this way, it seems that the active intention or desire to have a child counts in the court of public opinion. If this is the case, perhaps prioritizing this policy agenda, rather than forcing others into parenthood (i.e., those who are too young, have been raped or molested, or are resource-constrained), should be prioritized. 

These issues are further complicated by preimplantation genetic testing that is now possible through scientific medical procedures. This procedure leads to more prevalent and frequent embryo destruction as genetic defects, and poor health outcomes are discovered early on in the process. This issue itself is highly controversial as it can quickly lead to eugenic-based thinking. The fear around this is valid, especially because preimplantation genetic testing may increase as an unintended consequence of Roe v. Wade being overturned. People with genetic mutations have larger concerns about conceiving and so could use preimplantation genetic testing more often. For example, breast cancer may cause fertility and pregnancy concerns, as the likelihood of breast cancer can be passed through the gene mutation of BRCA. Again, research into this area should be prioritized in these discussions. Furthermore, womb-owners’ mental health should be included in this conversation as the road from struggling to conceive to IVF to preimplantation genetic testing to birth is an emotional one filled with complexities. Healthcare providers can support this cause by becoming knowledgeable about the long-term aspects of embryo donation decision-making. 

Here we reach my proposed compromise to bridge the gap between abortion and IVF debates: embryo donation. Embryo donation is an alternative, albeit still complex, process to embryo destruction where a healthy, infertile couple donates their unused embryos to another infertile couple. Donating embryos may help women with cancer, cancer survivors, or women with the BRCA gene conceive and carry their children. Both the receiving and donating couples’ attitudes on embryo donation are overall positive, but recognize that thinking about the best interest of the child is the most important consideration in this decision-making. This might include counseling the child about their genetic and/or conception origin, as well as any blood-related siblings they may have later on (this can be controlled for in the donation process). 

Other considerations revolve around the ethical and legal dimensions of this relatively new practice. The willingness of donors to donate their embryos is associated with the comfortability of disclosing personal information and the desire to have future contact with the child. Ethically, the child’s welfare should be considered by the donors, the consent and counseling of both the donors and recipients should be achieved, mixing embryos from different donor parents should be avoided, and donor expenses should be paid. To this last point, donors cannot sell their embryos, but they are often reimbursed for any incurred costs. Income-burdened people should be highlighted here in order to ensure this process is practiced equitably. Legally, liability issues are at stake, as well as the rearing rights and duties of both donors and recipients. Moreover, because of the nature of donation, legal issues are raised surrounding whether or not this process follows typical adoption standards, laws, or guidelines. All of these implications may lead to more questions than they answer, but in comparison to embryo destruction, donation may be more highly favored and thus studied for purposes of increased implementation. 

By Emily Carriere