The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization will upend the lives of pregnant persons across the United States seeking abortions who live in states that will now restrict or eliminate their access. As the three dissenting justices argued, and one of the majority justices advocated in a concurring opinion, the court’s decision could also pave the way for the reversal of key precedents constitutionally protecting important rights including same-sex intimacy, same-sex marriage, and even contraception.
In between its immediate effects on abortion and possible future effects on other rights is a question on the minds of families across America: What will the ruling mean for families trying to have children through in vitro fertilization and other reproductive technologies?
This is no small issue. A substantial portion of the US population faces infertility — the National Institutes of Health reports that 15 percent of heterosexual couples are unable to conceive after one year of trying, meeting its definition of infertility. Many turn to IVF. As currently practiced in the United States, however, IVF often involves the creation of embryos that will not be implanted in a single cycle and may ultimately be destroyed, what the medical community refers to as “embryo discard.” Nearly half of all IVF cycles involve preimplantation genetic testing, in which cells of a developing embryo are biopsied to determine the health of any resulting child. The test results sometimes reveal genetic anomalies associated with negative health outcome. Nearly all patients choose not to implant those embryos.
Even when embryos are healthy and good candidates for implantation, they might not be used. The process of harvesting eggs for IVF is both physically demanding and financially expensive (often not covered by insurance). While freezing eggs (rather than embryos) is a possibility, success rates are better when eggs are fertilized immediately before freezing. Doctors recommend transferring no more than one or two embryos at a time to avoid triplets or larger numbers of births, dangerous to both mom and babies. The result is that families will often produce more embryos than are needed in a single IVF cycle. These embryos are often cryopreserved for potential future use, but may be discarded later if the family is complete or for other reasons. A 2003 study estimated that there were approximately 400,000 embryos in frozen storage in the United States, but that number has almost certainly grown in the ensuing years.
Those who oppose abortion typically believe the fetus is a human person whose right to life should be protected, superseding a woman’s decision to terminate her pregnancy. To legally enshrine the embryo as rights-bearing, state legislatures and the antiabortion movement are increasingly adopting the idea that personhood begins at the moment of fertilization. Arkansas’s recent law, for example, declares that an “ ‘unborn child’ means an individual organism of the species 23 Homo sapiens from fertilization until live birth.”
While most states’ abortion laws reference pregnancy termination and thus can be interpreted not to cover IVF embryo destruction, some are less clear. Utah’s criminal law defines abortion as the “intentional killing . . . of a live unborn child through a medical procedure.” Since abortion is now untethered from pregnancy, does a fertility doctor commit a felony by complying with a patient’s request to thaw and discard frozen embryos? Would those who oppose abortion and think life begins at fertilization tolerate IVF embryo destruction? If anything, for those holding such beliefs, prohibiting embryo destruction might be easier to justify than prohibiting abortion, since it does not interfere with the bodily autonomy of women already gestating a fetus.
A couple of states have already gone in the direction of limiting embryo destruction. Louisiana law declares, “a viable in vitro fertilized human ovum is a juridical person which shall not be intentionally destroyed by any natural or other juridical person or through the actions of any other such person.” Kentucky prohibits “public medical facilities” from intentionally destroying embryos as part of IVF.
While the logic that personhood begins at fertilization should prompt antiabortion rights states to adopt these kinds of measures, it is far from clear that the politics will support them. Though Americans are deeply divided on abortion, IVF is viewed more favorably even by antiabortion Americans. Many have had friends or family members who have openly struggled with infertility, while abortion in the family is often shrouded in secrecy.
Politics may restrain attempts by states to restrict IVF or other reproductive technologies, but Justice Samuel Alito’s majority opinion for the court in Dobbs makes it clear the Constitution will not block them. In trying to explain why his opinion will not mean the end for contraception or same-sex marriage, he writes, “What sharply distinguishes the abortion right from the rights recognized” in those case is that “[a]bortion destroys what those decisions call ‘potential life’ and what the law at issue in this case regards as the life of an ‘unborn human being.’” Even taking Alito at his word, the same can be said for embryo destruction as part of IVF.
I. Glenn Cohen is a professor of law and a deputy dean at Harvard Law School and faculty director of the school’s Petrie-Flom Center for Health Law Policy, Biotechnology, & Bioethics. Judith Daar is dean and professor of law at the Salmon P. Chase College of Law at Northern Kentucky University. Eli Y. Adashi is a professor of medical science and former dean of medicine and biological sciences at Brown University.