Lab staff use a microscope stand and articulated hand controls to extract cells from 1-7 day old embryos, shown on the monitor at right, that are then checked for viability at the Aspire Houston Fertility Institute in vitro fertilization lab Tuesday, Feb. 27, 2024, in Houston. (AP Photo/Michael Wyke) Four years ago, when the Supreme Court issued its opinion in Dobbs v. Jackson Women’s Health, the justices were focused on overturning the constitutional right to an abortion and nearly 50 years of precedent.
The reach of the opinion’s attack on reproductive justice, however, extends far beyond abortion. One of the most visible areas is in vitro fertilization, a process through which almost 3 percent of babies are born each year.
The public strongly supports access to in vitro fertilization. So important is the procedure that, during his campaign, President Trump declared he would mandate payment for “all costs associated with IVF treatment, fertilization for women.” And in May, while anointing himself the “father of IVF,” Trump unveiled his administration’s rule making it easier for employers to cover fertility care.
But it turns out that treating IVF and abortion differently is not that easy, because they are actually two sides of the same issue. Each procedure allows people to make decisions about creating a family. Moreover, IVF, like abortion, involves control over prenatal life.
With costs between $15,000-20,000 a cycle, in vitro typically involves the creation of excess embryos to increase its efficiency and reduce costs. Prospective parents have typically been able to exercise control over their excess embryos, deciding whether to discard, donate or save them for future cycles. To date, there are estimates of more than 1 million frozen embryos in the U.S.
In vitro production of excess embryos is a problem in states that ban abortion as a means of protecting unborn children. Indeed, Dobbs declared that states could preserve “prenatal life … at all stages of development,” encouraging them to adopt embryo-protective approaches. As a result, many states that ban abortion treat embryos in test tubes differently from embryos in utero.
This approach is challenging, however. If embryos are people, then IVF must either be banned or restricted in ways that limit its success. We would have to prohibit embryo destruction, require transfer of all fertilized embryos or limit the number of eggs that are fertilized.
Italy imposed such a law in 2004, allowing three or fewer eggs to be fertilized and banning embryo freezing, which required embryos to be transferred at once. The result? In the five years the law was in effect, in vitro fertilization success rates dropped. The rate of multiples (twins, triplets, etc.) also increased, with the attendant risks to women and children. Women were also physically burdened by undergoing repeated hormonal stimulations.
Nevertheless, four years post-Dobbs, we have seen struggles to have it both ways — to protect embryos while also preserving the highly popular IVF. The Trump administration just issued a document on “embryo adoption,” labeling embryos as “children who already exist and are in need of a family,” even as it tries to support IVF. At the same time, the Texas Republican Party is debating whether IVF should be banned to protect prenatal life.
Two years ago, the Southern Baptist Convention issued a statement declaring that human embryos are people and urging its constituents “to only utilize infertility treatments … in ways consistent with the dignity of the human embryo.” And the Alabama Supreme Court infamously ruled, in a lawsuit over embryos destroyed due to alleged negligence, that cryopreserved embryos are persons for purposes of wrongful death claims. That shut down in vitro fertilization in Alabama until the legislature passed a law providing immunity to in vitro providers.
Despite these tensions, we suspect that IVF will remain protected in most states because the demographics of fertility patients — older, married, non-Hispanic white or Asian and wealthier — suggests they are more likely to vote to protect their interests. The explanation that in vitro creates life might even justify allowing patients continued control over their embryos.
But a world that allows in vitro fertilization and bans abortion will heighten social inequities with the least privileged struggling to access both IVF and abortion. The majority of those who seek abortions are low income, in their 20s, women of color and unmarried, with less ability to overcome abortion bans than their more privileged counterparts who pursue fertility treatment. The high cost of IVF also makes it beyond their reach.
Both IVF and abortion are essential reproductive healthcare, according to the American Society for Reproductive Medicine. And the ability to pursue either is fundamental to reproductive justice, which focuses on the right to have or not to have children, and the right to raise children with dignity.
The states that banned abortion post-Dobbs undermined the first part of those rights, especially for the most disadvantaged. While abortion rates have actually risen since Dobbs, pregnancy-associated and pregnancy-related mortality and infant mortality have increased in abortion-ban states.
The ability to create families through in vitro fertilization should not become the next reproductive justice casualty in a post-Dobbs world. If we care about reproductive justice and equity, neither abortion nor in vitro should be banned. They are, after all, a flip of the same reproductive coin.
Sonia Suter is a professor of law at The George Washington University Law School and founding director of the Health Law Initiative.
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