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IVF treatment can continue under Texas’ current abortion law, experts say

Last updated on July 13, 2022

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By María Méndez, The Texas Tribune

July 13, 2022

IVF treatment can continue under Texas’ current abortion law, experts say” was first published by The Texas Tribune, a nonprofit, nonpartisan media organization that informs Texans — and engages with them — about public policy, politics, government and statewide issues.

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Abortion bans across the country have thrown into question the fate of in vitro fertilization, an expensive medical process that helps people become pregnant.

But experts and anti-abortion groups say Texas’ laws shouldn’t apply to IVF treatment, and clinics across the state are proceeding with the procedures for now.

Similar to other “trigger laws” enacted to ban abortion after the U.S. Supreme Court’s reversal of Roe v. Wade, a Texas law passed last year broadens the definition of an “unborn child” to begin at “fertilization” and include “embryonic” stages.

That type of language can raise questions about the “personhood” and rights of embryos in IVF and other fertility treatments, said Dr. Natalie Crawford, who is co-founder of Fora Fertility in Austin.

In IVF, Crawford said, doctors use hormone injections to save more of a woman’s eggs during a menstrual cycle and take them out to fertilize them with sperm in a lab. The eggs are then allowed to grow into a blastocyst, or an implantation-stage embryo.

Crawford said this allows doctors to select the embryo they believe has the “highest chance of success” for a pregnancy to put back inside the woman’s uterus and save the other embryos so patients can try again or grow their family in the future. Doctors can also use these embryos to test for genetic diseases.

Once a person or couple no longer need the embryos, they decide whether to discard them as medical waste, donate them for scientific research or to donate them to another couple, she said. It’s this step in particular that is posing a question for IVF treatments in the face of abortion bans.

“The thing that we’re the most uncertain about is, ‘could it impact discarding embryos, like when somebody is done with their family and they have remaining embryos?’” Crawford said. “Or if they have genetically abnormal embryos, could it potentially make it harder to discard those?”

Some also worry about doctors’ ability to conduct genetic testing.

Right now, Crawford and other fertility doctors in Texas and other states are continuing IVF treatments because most laws against abortions focus on embryos during pregnancies, not outside of the womb.

“While they contain phrases like ‘every stage of human development,’ or ‘from the moment of conception,’ which makes us nervous, they are written in a statute that is clearly about terminating an established pregnancy,” said Sean Tipton, chief policy and advocacy officer for the American Society for Reproductive Medicine.

The American Society for Reproductive Medicine broke down “trigger laws” across the country, based on its lawyers’ analysis, and says Texas’ trigger law “does not appear to be applicable to IVF and reproductive medicine services prior to implantation of embryos.”

The ASRM found that similar laws in 11 other states most likely exempt IVF and assisted reproductive technology from abortion bans, but its lawyers warned Utah’s laws “could be interpreted to have an impact” on assisted reproductive technology under a provision against the “intentional killing or attempted killing of a live unborn child through a medical procedure.”

The statute mostly focuses on pregnancies, but the term “live unborn child” is left undefined and could allow people to “argue that discarding an embryo or donating an embryo for research use is an intentional or attempted killing of a live unborn child,” according to ASRM’s analysis.

In Arkansas, Alabama and Oklahoma, attorney generals’ offices have clarified anti-abortion laws should not have implications for IVF, but Idaho’s attorney general said it would be up to local prosecutors to decide how to enforce the state’s trigger law, according to NBC News. Texas Attorney General Ken Paxton’s office did not respond to a request for comment from The Texas Tribune.

Tipton said ASRM and its members also worry courts may interpret these laws differently and about possible changes as state Legislatures reconvene.

“We can’t speak to what state legislators are maybe gonna do in the next six months or a year and a half,” he said.

Texas’ trigger law is expected to go into effect 30 days after the Supreme Court issues a formal judgment overturning Roe v. Wade, following its late June opinion against the landmark 1973 decision that had established constitutional protections for abortion.

State Rep. Giovanni Capriglione, a Republican from Southlake who first introduced the legislation, did not respond to a request for comment.

In the meantime, the Texas Supreme Court has said the state’s 1925 anti-abortion statutes, which were challenged in Roe v. Wade, can go back into effect because they were never repealed by the state Legislature. Those statutes were written before the first IVF baby was born in 1978, but they also focus on pregnant women and outlawing acts in which an embryo is “destroyed in the woman’s womb.”

Two of Texas’ most well-known anti-abortion groups — Texas Alliance for Life and Texas Right to Life — also say the state’s laws and more recent definition of abortion should not affect or inhibit IVF treatment, even if they include the term embryo.

“Abortion is, according to Texas law, causing the death of the child, who is a child of a woman known to be pregnant,” John Seago, president of Texas Right to Life, said pointing to a statute the Legislature amended a few years ago outlining what counts as an abortion.

“There’s also no such thing as an abortion outside of a woman’s womb, so when you look at what’s happening in the laboratory with assisted reproductive technology, that is not destruction of an embryo,” he added.

This language likely leaves IVF treatment intact, legal scholars told the Tribune. A district attorney could decide to try to test the issue by bringing a case against a fertility doctor, said Josh Blackman, a constitutional law professor at South Texas College of Law Houston. But he added that challenging IVF doesn’t appear to be an area “ripe” for action in the anti-abortion movement.

Seago said Texas Right to Life has concerns about the “destruction” of “excessive” embryos, particularly in medical research, but the issue is not one of its priorities for Texas’ 2023 legislative session. Instead, its priorities include enforcing existing laws against abortion and providing more support for pregnant women.

Amy O’Donnell, a spokesperson for the Texas Alliance for Life, said the group had not finalized its legislative priorities yet, but said the group supported a law passed in 2017 requiring the Texas Department of Family and Protective Services to post information on its website about embryo donations to other people to promote the option.

A bill filed in 2019 aimed to ban state agencies from contracting with vendors affiliated with “destructive embryonic stem cell research,” human cloning and abortions, but the legislation didn’t gain traction.

In Louisiana, embryos are stored because the state outlaws the destruction of embryos unless they “fail to develop further” over a 36-hour period, Tipton said.

Crawford, the co-founder of Fora Fertility in Austin, said most people keep their embryos for several years, and in some cases up to 20 years, but they may decide to discard them after reaching their desired family size or after a divorce or death of a partner. And while donating embryos to other patients can be an option, some people may not be comfortable with that, she said.

“That is a personal decision for most of us,” she said. “An embryo does not exist as a person without a uterus to be implanted in, and that is what biology tells us all the time because many embryos do not implant and do not go on to become people.”

For now, Crawford said she is advising her patients to not rush to transfer their IVF treatment to other states without abortion bans because “transporting embryos is not without risk of itself.” Instead, she says patients should “sit tight” and watchfully wait.

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