The Supreme Court of the United States issued the landmark Dobbs v Jackson decision, imminently affecting more than half of the country’s population. Dobbs officially overturned the 1973 Roe v. Wade decision, thereby abandoning the principle of stare decisis, or former legal precedent. Roe v. Wade was formative in establishing the right to privacy, and granting pregnant persons the Constitutionally protected right to exercise autonomy in seeking an abortion. The decision paved the way for feminists across the world to rally for further rights, including; contraception accessibility, same-sex marriage, equal pay rights, and basic protection from discrimination on the basis of sex.
Right now, many people have been left dumbfounded and horrified as to what overturning Roe means for the future of essential rights to privacy. As of June 30, 2022, 6 states have banned abortion, 5 states have heavily restricted abortion, and 11 more states have pending legislation to severely limit abortion access. Such legislation that aims to hinder abortion availability falls under the category of “personhood laws”, which define personhood as beginning at the moment of fertilization. Now that stare decisis has been formally abandoned, other rulings like those that legalized same-sex marriage, birth control and gay marriage are without a doubt, also in danger. Abortion is healthcare. Will other reproductive medical procedures become illegal or highly restricted? There have already been reports of pharmacists refusing to fulfill orders for needed medications and physicians refusing to place IUDs.
One of the biggest risks of equating a fertilized egg to having the same rights as a living, breathing child concerns assisted reproductive technology (ART). ART is most frequently used to assist infertile people in their journey toward reproduction. The most well known facet of ART is in vitro fertilization (IVF). In vitro fertilization consists of removing eggs from a consenting person’s ovaries, fertilizing the eggs with sperm from a partner or donor, and freezing the resulting embryos or gametes for later use. Although the process is scientifically sound, personhood laws threaten to disrupt IVF by criminalizing the act of making, freezing, or discarding embryos.
In fact, prominent fertility physicians have been raising alarms about the threat of this court to ART since at least Amy Coney Barrett’s Supreme Court nomination. During her confirmation hearing, Barrett evaded questions about her views on IVF and whether she would overturn Roe v. Wade. When asked whether criminalizing IVF would be constitutional, she replied that she couldn’t “answer questions in the abstract.” She has previously been associated with extremist anti abortion, “life begins at fertilization” groups who have been openly hostile toward IVF.
One area of concern is the legal status of a fertilized embryo. If legislation uses language like “life begins at conception” or “any stage of human development,” would eggs fertilized in vitro be considered alive? Human? Some states might consider them property while others might confer them the legal rights of an adult citizen. Will egg and sperm donation continue to be legal? What if those tissues are being donated to a single person or LGBTQ family? (or anyone else that activist politicians and judges don’t agree with the lifestyle of?).
What will happen to frozen embryos? People choose to have their embryos frozen for many different reasons. Some freeze embryos to maintain their integrity while taking a biopsy and testing them for genetically inherited diseases or an abnormal number of chromosomes. Many undergoing IVF freeze unused embryos for future cycles if an embryo does not implant successfully or to have more children down the line. Additionally, some people choose to freeze their embryos before undergoing intense medical treatments like chemotherapy, which can cause temporary or permanent infertility.
If embryos are awarded legal rights, would people be allowed to have their embryos frozen or would that be considered abuse? Would destroying unused embryos be considered manslaughter? If it is considered murder to place a 5 year old child in a freezer, is it also illegal to do the same to an embryo? Can the two be rationally considered identical in terms of biological characteristics and rights?
Overturning Roe v. Wade may have unwittingly (or worse, perhaps knowingly…) impeded people’s ability to choose what is done with eggs, sperm, and embryos in assisted reproduction. Oftentimes during the IVF process, embryos can be discarded under standard of care due to the potential risk of miscarriage or development of chromosomal abnormalities that could pose extreme risk to the mother and child.
Additionally, the legality of other procedures like selective reduction (terminating some fetuses to decrease the risk for the birthing person and their baby). For instance, this process is utilized if a mother is found to have three viable embryos, or triplets, but would likely not be able to carry all three babies to term without risking developmental setbacks or medical risks. A few of the embryos would then be terminated if needed. This is most often only performed when the risk of carrying multiple fetuses outweighs the additional risks that the reduction procedure brings to the pregnancy.
Under personhood laws, it would be criminal to dispose of an embryo just as it would be deemed manslaughter to do the same to a child. Preimplantation genetic testing, or biopsy of a few cells from an embryo to diagnose inherited genetic diseases or mutations, for example, that cause conditions like breast cancer or Huntington’s disease) could change. But as a society, how can we expect all women to deliver babies with known abnormalities into a country with minimal resources to support people with such disabilities? Without the protections of Roe v. Wade, pregnant people will be forced to carry high-risk pregnancies that compromise themselves and their babies.
The fall of Roe v. Wade signals that IVF along with any other medical procedure that politicians disagree with, could become illegal or severely restricted, leading to higher costs, less accessibility, and lower chances of successful, safe pregnancies. ART recognizes each person’s individual choice to pursue reproduction and intends to support those people with fertility disadvantages that may obstruct the likelihood of conception and safe delivery. On that same note, we recognize that not each person wants to reproduce and we support all people in their right to discern which reproductive journey is right for them. Therefore, our industry is a target for this activist Court.
The government must take steps to mitigate this heinous decision, and codify into law the right to choose what people do with their own bodies.
References & Resources to Learn More