For decades, Republican politicians have been trying to restrict, and ultimately end, abortion rights. Now unleashed by the US Supreme Court’s recent decision in Dobbs v. Jackson Women’s Health, they may have finally achieved their goal.
Obviously, the anti-abortion laws coming out of Republican-led states will make it much harder to receive abortions in those states. But these laws also will likely have serious unintended consequences, especially in relation to assisted reproductive technologies. The US market for these treatments was recently valued at $3 billion in 2021.
In trying to stamp out abortions, too many states are passing laws without careful consideration of how each provision could affect other reproductive stakeholders. The irony—and tragedy—is that in supposedly trying to promote “life,” these statutes are likely to have an inhibitory effect on treatments such as in vitro fertilization. That process in 2019 alone resulted in 77,998 live births—which can include multiples— and 83,946 live-born infants, according to a 2019 report from the Centers for Disease Control and Prevention.
These effects could be numerous and severe, even if they are unintentional.
Vague legislative provisions could imperil common IVF techniques, such as destroying or freezing embryos or using pre-implantation genetic testing. Patients could suddenly be forced to make new decisions about what to do with frozen embryos that are now legally defined as humans.
Consider Potential Scenarios
Perhaps the most foreseeable way abortion regulations could affect reproductive technologies is through poorly drafted definitions of terms like “embryo” or “human life.” States that similarly adopt Arkansas’s vague definition of a human being as “an individual organism of the species Homo Sapiens from fertilization until live birth” would not distinguish between embryos created by sex and those made in a lab.
Provisions that refer specifially to “pregnancy” or incorporate phrases such as “within a woman’s uterus” explicitly exempt embryos created with medical assistance. Fortunately, much of the existing more restrictive abortion legislation, including “trigger” laws, does exempt these procedures by using precise language.
Moreover, courts in states with strict abortion restrictions could protect embryos by prioritizing gestation opportunities over fidelity to contract provisions, countermanding embryo disposition agreements that couples executed prior to treatment.
At least one state has already enacted such legislation. In 2018, the Arizona Legislature passed a law that if divorcing couples disagreed on embryo disposition, a court could award the embryos to the party that “provides the best chance for the in vitro human embryos to develop to birth.” This law compels genetic parenthood even for a person who contracted against it.
States also could pass laws directly regulating reproductive technology protocols.
In 2009, a bill was introduced, but not passed, in Georgia at the behest of the nonprofit organization Georgia Right to Life. The measure (S.B. 169) stated that clinics and physicians owe “a high duty of care to the living in vitro human embryo,” that embryos “shall not be intentionally destroyed for any purpose by any person or entity,” and that a person or entity practicing IVF “shall limit the number of in vitro human embryos created in a single cycle to the number to be transferred in that cycle.”
These provisions can impose onerous financial, social, and psychological costs upon patients. Eggs and sperm likely would be frozen and stored separately. Women would risk undergoing a greater number of procedures, such as multiple egg retrieval surgeries, and increasing the adverse health effects stemming from some reproductive technologies.
These changes also might perversely incentivize multifetal pregnancy reduction—where one or more fetuses in a multiple pregnancy are eliminated to reduce the risk of medical complications to the woman. In this selective reduction, a physician uses ultrasound imaging to inject potassium chloride into the heart of the selected fetus, causing it to die and be reabsorbed into a woman’s body.
Disputes could also arise concerning state law provisions asserting that life begins at fertilization and generate new controversies about whether a person must use or donate all frozen embryos they created.
On July 11, 2022, a federal judge in Arizona blocked a 2021 law that recognized fetal personhood from conception and mandated that fertilized eggs, embryos, and fetuses must be granted the same “rights, privileges, and immunities available to other persons.”
In the face of such language, what alternatives remain for patients who have completed their families or are finished with infertility treatment, but have frozen embryos they do not intend to use and do not wish to donate? Would a patient have to pay to freeze these embryos in perpetuity? Or would a woman have to undergo “compassionate transfer,” transferring embryos into her uterus when she is highly unlikely to become pregnant?
Finally, abortion restrictions also could directly affect several aspects of third party reproduction, notably surrogacy. For example, how are surrogates and intended parents to incorporate provisions regarding abortion or selective reduction into surrogacy contracts in states that outlaw abortion, or allow it only up to six weeks—a time when it is impossible to identify many anomalies that make a pregnancy nonviable?
In the end, if lawmakers don’t address the problems I’ve described, abortions may decrease, but the financial, social, and emotional costs of these developments will be staggering. To avoid, or at least minimize, these costs, Republicans should consider shifting their focus from ending abortions to building families instead.
This article does not necessarily reflect the opinion of The Bureau of National Affairs, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.
Jody Madeira (Ph.D.) is professor of law and Louis F. Neizer Faculty Fellow at the Indiana University Maurer School of Law. Her research interests include torts, law and medicine, and firearm rights. She is the author or co-editor of three books, including “Taking Baby Steps: How Patients and Fertility Clinics Collaborate in Conception” (2018).