The implications of the Roe v. Wade reversal on IVF treatment

Gerard Letterie and Dov Fox, in their Journal of Law and the Bioscience’s essay, discuss the reversal of Roe v. Wade by the Supreme Court that restricts abortion rights and allows states to assign legal personhood to embryos, potentially affecting the use and disposal of frozen embryos, leading to liability risks for clinics and impacting the doctor-patient relationship in fertility medicine.

The original article has been edited for length. It was written by Gerard Letterie and Dov Fox, in their essay “Legal personhood and frozen embryos: implications for fertility patients and providers in post-Roe America,” licensed under CC by 4.0.

In June 2022, the Supreme Court reversed Roe v. Wade, eliminating the constitutional right to abortion and allowing states to assign legal personhood to embryos from fertilization.

The ruling in Dobbs v. Jackson Women’s Health Organization permits states to impose further restrictions, potentially banning embryonic stem cell research and certain reproductive practices damaging to embryos. The ruling may also limit the use or creation of frozen embryos for assisted reproduction.

Female fertility patients can create and freeze ‘spare’ embryos to avoid multiple egg retrieval cycles, offering a backup if initial implantation fails. Restricting this option would necessitate multiple retrievals and could push for mandatory ‘adoption’ of unused embryos. Laws granting personhood to embryos might complicate clinical practices and disrupt previous agreements.

The following two scenarios are instructive:

1. A couple has six frozen embryos stored at a local clinic and they no longer wish to pay the monthly storage fee. Before Dobbs, in all states except Louisiana, the embryos could be discarded with signed consent from all parties involved. However, after Dobbs, this option may no longer be available in many states. Following the couple’s request to discard the embryos could potentially expose the clinic to liability for ‘wrongful death.’
2. A divorcing couple disagrees on what to do with their four frozen embryos. The woman wants to implant one, but the man wants them destroyed to avoid forced genetic parenthood. New laws may now favor implantation, even against their agreement. States granting personhood to embryos may now override agreements and demand that the embryos be given to the party desiring implantation.

Freezing embryos has revolutionized fertility medicine by providing options for future use. The success rates vary, and not all embryos are capable of implantation and live birth. Identifying viable embryos with certainty is practically impossible. Embryo freezing has become routine, with millions of frozen embryos in storage. Granting personhood to embryos may restrict discarding or using them for research.

Freezing embryos is crucial in fertility medicine, as it maximizes both present and future reproductive options. It allows for immediate use while also preserving embryos for later use. This benefits individuals who want to delay starting a family due to factors like age or career plans. However, if embryos are considered persons, their disposal and use for research may be restricted, and transporting them to states with more flexible laws could be difficult.

Recent fertility freezer crashes demonstrate the potential liability for destroying frozen embryos under the post-Roe regime. In 2018, malfunctioning storage containers at medical facilities in Cleveland and San Francisco led to the loss of hundreds of embryos. The rising temperatures during an unstaffed weekend caused irreversible damage, with no remote alarms in place. Clinic operators blamed equipment defects, while manufacturers accused staff negligence.

With personhood laws in effect, states could sue clinics for wrongful death, holding them accountable for the loss of legal persons. Courts have consistently rejected claims of “wrongful death” for IVF embryos, as they are not considered legal “persons” under state law. Liability risks, including transportation damage, accidental loss in the lab, or intentional disposal, may arise for embryos following the Dobbs decision.

Options that have been considered as possible solutions are embryo donation and restricting the number of eggs, or oocytes, that are inseminated and thus the number of embryos in storage. Donation has been talked about as a win–win (excess embryos “adopted” by those interested in pregnancy) but has a relatively low uptake. In a recent survey only 15 per cent of patients are willing to consider embryo donation.

IVF aims to maximize the number of embryos for better outcomes due to the unpredictable nature of sperm-oocyte interaction, fertilization, and embryo development. Identifying which oocytes will yield quality embryos is challenging. Inseminating all oocytes is the most informative and efficient approach. Even with perfect-looking oocytes, fertilization rates are around 80% and embryo development is about 30%, which can be lower in specific clinical circumstances like advanced maternal age.

Limiting the number of eggs that are fertilized has negative consequences for various goals beyond infertility treatment. They hinder genetic screening of embryos, limit fertility preservation options for women, impact fertility preservation for cancer patients undergoing chemotherapy, and affect the fertility options available to the LGBTQIA+ community.

Enforcing current or proposed laws in the infertility sector would make it nearly impossible to provide adequate care. State laws could prevent practitioners from developing treatment plans that prioritize the patient’s best interest but comply with legal constraints. The Dobbs decision could limit clinics’ ability to offer quality fertility care to patients.

There are two significant threats. First, interference with clinical decisions undermines the doctor-patient relationship and erodes trust. Second, the liability risk includes potential criminal prosecution, which may restrict treatment options and lead to severe penalties. While IVF center lawsuits are rare, the post-Dobbs era could increase both their frequency and the severity of consequences.

Post-Dobbs, restrictions on IVF could follow a similar path as anti-abortion legislations, imposing complicated rules and regulations that make it difficult and expensive for clinics to operate. For instance, in Texas, abortion regulations required abortion centers to meet surgical center criteria, leading to costly upgrades and noncompliance would result in severe penalties. Similar restrictions could affect common IVF procedures like PGT-A, limiting but not eliminating options for best outcomes.

Criminal liability and loss of licensure now add to concerns about medical malpractice. The prospect of criminal indictment should give pause to any practitioner in the IVF space but added to this is possible lack of insurance coverage for these claims. Medical malpractice policies do not cover criminal misconduct. Accidents happen in any clinical setting. In IVF, embryos may be unintentionally damaged or discarded. But the implications for error in this setting post-Dobbs imposes a far greater risk.

Recent state laws introduce the clear risk of criminality. For instance, a North Dakota law defines murder as intentionally or knowingly causing the death of a human being, or causing the death under circumstances showing extreme indifference to human life. Assuming life begins at conception, doctors administering IVF could be seen as acting with intent or indifference towards the multiple embryos, some of which may result in a live birth while others may not survive. These risks may extend to other staff involved in the process, as well as to individuals seeking parenthood through IVF, potentially leading to criminal liability.

Certain state bills raise alarm with their language, as they could lead to criminal penalties. For example, a bill in Louisiana grants constitutional rights to unborn children from fertilization and treats abortion as homicide. Personhood laws create a conflict for fertility doctors, impacting patient care and trust. This threatens the progress of bioethics and patient well-being in fertility science and medicine.