More than 73,000 babies were born in the U.S. by means of in vitro fertilization (IVF) techniques in 2020, slightly more than 2 percent of all births that year. About 85 percent of children born as a result of IVF procedures in this country are born from thawed embryos. Since 1987, more than 1 million Americans started their lives as embryos created outside of their mother’s bodies. By one estimate, as many as 1.4 million embryos remain frozen at U.S. fertility clinics.
It is not clear what effect the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization will have on would-be parents seeking to use IVF as a way to have children. The majority opinion states that abortion destroys “potential life” and what the Mississippi statute at issue in the case calls an “unborn human being.” It does not, however, mention IVF or other assisted reproduction techniques.
Infertility advocates and practitioners of fertility medicine are, nevertheless, concerned about the long-term implications of the Dobbs decision. In an article in Contemporary OB/GYN, Jared Robins and Sean Tipton, respectively the executive director and the chief policy and advocacy officer of the American Society for Reproductive Medicine, argue that the Dobbs decision puts fertility care at “significant risk.” Under current practice, patients of IVF clinics generally choose to create numerous embryos for possible implantation. As fertility treatments proceed, embryos are often discarded when pre-implantation genetic diagnosis indicates significant inheritable maladies or after patients have completed their families.
As an example of post-Dobbs risks, Robins and Tipton point to Nebraska’s Legislative Bill 933 which declares that an “unborn child means an individual living member of the species homo sapiens, throughout the embryonic and fetal stages of development from fertilization to full gestation and childbirth.” They assert that “this bill clearly classifies an IVF-created embryo as an unborn child.” Under the Nebraska bill, “causing or abetting the termination of the life of an unborn child” is a Class IIA felony, punishable by up 20 years in prison.
An op-ed in The New England Journal of Medicine also notes that users of IVF services who have completed their families generally choose to destroy their unused frozen embryos. “If these embryos are declared human lives by the stroke of a governor’s pen, their destruction may be outlawed,” observes the op-ed. “What will be the fate of abandoned embryos, of the people who ‘abandon’ them, and more broadly of IVF centers in these jurisdictions?”
Writing in the Journal of the American Medical Association, two legal scholars and a doctor observe that with respect to using IVF to treat infertility, “a future Supreme Court opinion might easily group embryo destruction as more like abortion because of its involvement with the destruction of ‘potential life.'” They add that the Supreme Court might more easily decide to prohibit IVF because it would not involve “a countervailing claim to a woman’s gestational bodily autonomy.”
In their more sanguine analysis of how the Dobbs decision could affect IVF treatments over at The Washington Post, three political scientists note that since 2010, 45 of the 83 bills mentioning both abortion and IVF introduced or passed by state legislatures have explicitly exempted IVF and assisted reproductive technologies. The political reluctance to ban IVF may be based on the fact that most Americans are in favor of allowing people to use it. A 2013 poll found that only 12 percent of respondents thought IVF to be morally wrong. (Of course, the fact that a majority of Americans believe that decisions about terminating a pregnancy should be left to a woman and her doctor didn’t prevent Roe v. Wade from being overturned….)