An attack on IVF is an attack on your reproductive rights, too

Well well well. Here we are again, staring down the barrel of a poorly reasoned, Christian-influenced, intentionally confusing trainwreck of a state court ruling, this time in Alabama. Last year I interviewed Bella Pori, assisted reproduction legal expert (and close personal friend), about embryonic personhood laws, and this is what she said:

Anyone who is reading this who has done IVF knows that you don’t get every embryo you create. You create some, they unthaw them, some become nonviable. That could be treated as homicide. There’s a bill in Arkansas right now that does exactly that. If you create an embryo for IVF, that is a life and you cannot - most of them say “willfully” destroy it. But it is possible that they could say it doesn’t matter if you willfully destroy it or not. So say you do [preimplantation genetic diagnosis] on an embryo and something happens to the embryo, that’s willful. You took an act, the embryo died, it doesn’t matter if you intended to or not - that’s how we look at a lot of murder. You shoot, you hit someone, you didn’t intend to hit them, you still killed them, you still have to go to prison. That’s the worst case scenario because then, if you’re a doctor in Arkansas, why would you do IVF? Why would you open yourself up to murder prosecution because you’re testing an embryo to make sure it doesn’t have Tay-Sachs?

To review, neither Roe v. Wade nor Dobbs v. Jackson directly addressed the question of whether abortion should be allowed. Roe was grounded in the right to privacy. Dobbs is grounded in states’ rights. It is the interpretation of these rulings that leads to the further constriction of our rights. The Alabama Supreme Court ruling last week was grounded in the ability to sue for wrongful death in the event that an embryo dies. Although it invokes God no fewer than 41 times, nowhere in the decision does it say anything to the effect of “people in Alabama can’t undergo fertility treatments.” But due to the relatively high chance of embryonic death during fertility treatments, a clinic is disincentivized from practicing if their providers would be subjected to fines, civil lawsuits, or prison time over the course of their career. 

This is not the first embryonic rights law in the United States. Multiple states have language in their laws that gestures at embryonic personhood. In Louisiana embryos have the legal right to sue and be sued, though they need a proxy for reasons that should be obvious. The Alabama ruling is the first that has specific implications for the death of an embryo, and it raises dozens, if not hundreds or thousands, of questions. To name a few: If a grandparent leaves their estate to their grandchildren, would four frozen embryos get an equal share? Can an embryo open a bank account? If you do IVF, do you have to pay for storage of unused embryos indefinitely lest you are sued for wrongful death? What if you file for bankruptcy? Does the state have to take on that financial burden? What happens if you stop paying for embryo storage? Will you be arrested? How would a divorced couple split custody of their embryos? Does a fetus count for the HOV lane? Can a person start drinking at 20 years and 3 months if their first birthday was their conception? Can we claim them as dependents on state income taxes?

(Other than the logistical questions I have listed here, I am curious what was going on behind the scenes of the case. The plaintiffs, fertility patients themselves, James and Emily LePage and William and Caroline Fonde, were hoping to benefit from IVF. The intended consequences of the lawsuit, at least on the lawyers’ part, was clearly to restrict IVF in the state. Perhaps someone who was uneducated about fertility treatments wouldn’t expect their embryos to die. Were they unsuspecting pawns, or did they decide that since they can’t have a baby, nobody else can either?)

The repercussions of this law will be wider reaching than just for IVF patients in Alabama. Activists have noted that, for wealthy white women, abortion and IVF will always be available. Wealth improves access; this is undeniable. And it may be comforting for some people to believe they are invulnerable. But as any doula in New York City who has supported, say, a software engineer’s birth in a private Upper East Side hospital will tell you, no level of wealth can buy you adequate obstetric care in the United States, even under the best of circumstances. A comparison: the wealthy white residents of an air conditioned high-rise may take longer to feel the effects of climate change, but they won’t be shielded. Celebrities’ Hamptons homes will eventually – sooner than we’d like to think! – be under the same saltwater as Tuvalu. 

Telling people they are exempt from incursions on their rights will not build solidarity, nor does it adequately convey the reality of the situation. Wealth confers freedom to travel, to take time off work, and to seek multiple medical opinions. But it won’t help anyone when an ectopic pregnancy warrants emergent care, nor if restrictive interstate commerce laws prohibit non-residents from seeking care in different states, nor if doctors are unwilling to provide care that could make them vulnerable to legal action. Nothing will protect a pregnant American if obstetric students are prohibited from learning lifesaving procedures like D&Cs, creating multigenerational obstetric crises. 

I have also encountered the opinion from people whose fertility remains intact - or so they believe! - that IVF is some froufrou late capitalist bullshit procedure for people with too much time and money, and why would you go through all that when you could “just adopt?” There is a lot to critique about assisted reproduction. High costs and lack of coverage render it inaccessible to most. Surrogacy is a minefield for exploitation. The ability to screen for sex and genetic diseases raises serious ethical questions. Donor-conceived people have advocated for the right to know their genetic histories and connect with their biological families. But the young, heterosexually-partnered, fertile, and healthy aren’t the only people who deserve to become parents. Adoption is not cheap, easy, or, as adoptees will tell you, something people should do simply because they’re infertile. If you are queer, if you have fibroids, if you have recurrent pregnancy loss, IVF could be your only or one of your only options to have a biological child. 

The Alabama state legislature voted this week to grant immunity to doctors who perform IVF in the event that an embryo dies, aware that this will be unpopular with even some anti-abortion voters. It is a short-term solution; “embryonic personhood” is, as a belief system, incompatible with IVF, and lawsuit-averse healthcare facilities have no legal obligation to continue practicing in a hostile state. Each court ruling that chips away at our reproductive freedom puts us in an even less humane medical system. Most people aren’t able to opt out of the system when they need it; we are all living in a more dangerous society, even those who support the rulings as they come.