[music]

Voiceover: This is The Takeaway with MHP from WNYC and PRX, in collaboration with GBH News in Boston.

[music]

Melissa Harris-Perry: The Supreme Court decision overturning Roe v. Wade and ending the constitutional right to abortion could have meaningful repercussions on assisted reproductive technology, including in vitro fertilization or IVF. Some fertility experts worry that the existing language in state laws could complicate or even limit the choices of would-be parents. We talk with someone navigating these concerns.

Stephanie: My name is Stephanie. I live in Minneapolis. I moved there almost 10 years ago from Kentucky with my husband because that's where the jobs are.

Melissa Harris-Perry: When Stephanie and her husband first got married, they didn't plan to have children. Those plans changed.

Stephanie: When I turned 33, I was like, "Oh my gosh, I'm a mom. I need to be a mom."

Melissa Harris-Perry: Stephanie is now 38, and she and her husband have been trying to get pregnant for a few years.

Stephanie: It's kind of ironic because I spent my 20s not trying to get pregnant, and I have spent my 30s trying to get pregnant.

Melissa Harris-Perry: They faced some delays and complications. Before the pandemic, doctors found a fibroid in her uterus that was the size of a baseball. She couldn't get it removed once the pandemic began because it was considered an elective surgery.

Stephanie: May of last year I had the fibroid removed. We ended up getting pregnant the first time that we tried, this past November, which ended in a miscarriage. We've been trying ever since to get pregnant. We started seeing a fertility specialist in March of this year, and we are on our second round of IUI which is intrauterine insemination. I actually am waiting to find out if I am pregnant. If I am not, we will do one more round of IUI and if that doesn't work, then we will start with IVF.

Melissa Harris-Perry: IVF is one of the most widely known forms of assisted reproductive technology or ART. Assisted reproduction plays a role in about 2% of all births in the United States. There's a lot of uncertainty around how the Supreme Court decision ending the constitutional right to an abortion will affect state regulations regarding IVF.

Many states with new abortion laws define personhood at the moment of fertilization. It's unclear if states will place restrictions on the handling of embryos in fertility labs. Alabama is one state that's made it clear that fertility clinics would not be subjected to penalty for discarding or manipulating embryos in fertility labs, as embryos outside of the womb do not have the same rights as those inside the womb. For states who have not yet made this distinction, the future of fertility clinics and IVF practices remains unclear.

Stephanie: It's really scary not knowing if, number one, if what I'm doing is going to be judged. [chuckles] I'm not a Christian, and if people want to believe what they believe about when conception occurs, I think that that's great, but I don't understand why it needs to be something that has such a deep effect on me trying to have a family.

Melissa Harris-Perry: Well, Stephanie lives in Minnesota, where Democratic lawmakers have said they will protect abortion rights. As you heard, the uncertainty surrounding abortion laws following the Roe decision has unnerved her. Other state laws could affect the ability for future IVF patients to opt for selective reduction. It's a common practice to decrease embryos in the womb in the case of multiples.

[music]

Stephanie: Yes, it's incredibly emotional, hearing stories about pregnant women on the news every single day, it drums up a lot more of the emotions. It's just almost more complicated.

[music]

Melissa Harris-Perry: The Supreme Court's decision to overturn Roe v. Wade leaves the future of abortion in the hands of states. It's also created uncertainty when it comes to those using IVF to conceive. Some states, including Texas and Kentucky, banned the termination of a pregnancy once an egg is fertilized. While those laws include some provisions allowing for medical providers to perform procedures if the mother's life or health is severely at risk, it's unlikely IVF patients in these states would still have the option for procedures like selective reduction.

This procedure is common practice in IVF and involves terminating embryos in the womb, often due to chromosome abnormalities or the financial, emotional, or health consequences of a pregnancy of multiples.

Joining me now is Dr. Kim Thornton, Director of the Division of Reproductive Endocrinology at Beth Israel Deaconess Medical Center in Boston, and a Reproductive Endocrinologist at Boston IVF. Dr. Thornton, thanks for being here on The Takeaway.

Dr. Kim Thornton: Thank you for having me.

Melissa Harris-Perry: I'm also joined by Dr. Louise King, an Ethicist and Surgeon who serves as Director of Reproductive Bioethics at the Harvard Medical School's Center for Bioethics and Vice-Chair of the Ethics Committee at the American College of Obstetricians and Gynecologists. Thanks to you as well for being with us, Dr. King.

Dr. Louise King: It's my pleasure. Thank you for inviting me.

Melissa Harris-Perry: Dr. King, I want to begin with you. You're a bioethicist and earned a law degree before becoming a physician. Can you just weigh in a bit on the legal perspective of what you see in the context of the Dobbs decision that can affect the issue of assisted reproductive technologies or ART?

Dr. Louise King: In terms of the legality of proceeding forward with IVF, of course, it's still technically legal. Some of the sequela of IVF, notably perhaps meeting abortion services in the context of a miscarriage, but still with electrical activity, and by that, I mean "a heartbeat", can be called into question in some of our states now. The safety of proceeding with IVF may also be called into question in those states.

Melissa Harris-Perry: I want to think a bit about this. For folks who haven't engaged with assisted reproductive technologies, it can feel like either a scary world or a closed world or one that is either super scientific or medical in some kinds of ways. Dr. Thornton, can you just maybe walk us a bit through the moments in the context of IVF and other assisted reproductive technologies, where the issues of termination really come up, how they undergird some of what happens in ART?

Dr. Kim Thornton: When you think about in vitro fertilization procedures, we see couples with a number of different types of reasons they might seek fertility care. The couples are very thoughtful in terms of deciding to pursue IVF. The IVF procedure involves taking medications that stimulate the ovaries, we then retrieve eggs, fertilize them with sperm and create embryos.

One of the advances in terms of IVF is we've gotten very sophisticated in being able to grow embryos to the blastocyst stage which improves likelihood of embryo implantation. We are able to do genetic testing of embryos in some instances where couples might be carriers of genetic conditions, which, again, requires manipulation of embryos.

From the standpoint of IVF and the risk with this recent decision is whether or not IVF could become potentially more complicated if there were restrictions placed on fertility care and how we might deliver that care.

Melissa Harris-Perry: I asked Dr. Thornton about some of the decisions within IVF treatment that might become more restricted depending on state law.

Dr. Kim Thornton: Absolutely. I think that we're fortunate that, at least in the US and in certain states, in particular, IVF services are readily available, but any restrictions to IVF would limit the access to care that many patients might need. For instance, if you were a carrier of a genetic condition, you and your partner were a carrier of a genetic condition, IVF with genetic testing is one of the things that we can offer. That may be something that's not necessarily accessible.

We've also made great strides in terms of being able to offer single embryo transfer to reduce the risk of conceiving a twin pregnancy or even a triplet pregnancy. With that comes other things such as, again, culturing embryos after blastocyst, freezing embryos, and transferring one embryo at a time. That might be more difficult to patients, moving forward.

Melissa Harris-Perry: Dr. King, I want to come to you on this. It's also the case that assisted reproductive technology is not inexpensive. Even when portions of it are covered by employer-provided health insurance, typically, those of us who found ourselves in the IVF realm are people of at least relative means and often of substantial means.

I'm wondering if there's also this sense of shrug that says, "Well, if you can afford to do IVF, then you'll be able to afford to travel to New York and stay for two days or travel to California in order to make these kinds of termination decisions if it comes to that post-transfer," and therefore thinking that maybe this doesn't have that same kind of effect. I'm wondering, Dr. King, if you still see, even for those people of means, real danger in the Dobbs decision for the availability and access to IVF?

Dr. Louise King: Of course, the Dobbs decision disproportionately affects persons of color and it's really important for us to emphasize that. It should be noted that most estimates say that only 12% of those persons in the United States who could benefit from assisted reproduction can actually access it in this country. That's another huge problem, but even in the context of your excellent point, which is that people who are able to access assisted reproduction can, to some degree or another, afford it, many of those people are on their mortgaging homes, really stretching themselves very thin just to be able to afford this.

To think that they could then also add in the cost of travel and lost opportunities for employment and all the emotional burden of having to navigate that leaving a state in which something is illegal, crossing state lines, et cetera, that's a lot to ask of anyone even of somebody with means. It should not be something that any of the citizens of this country should face.

I would still say it's exceptionally problematic and incredibly myopic of the Supreme Court not to have considered all these ramifications and all the interstate regulations of commerce clause, et cetera, et cetera that come into play here that they've referenced in some of their footnotes, but essentially ignored.

Melissa Harris-Perry: Dr. Thornton, I want to think a little bit about practitioners. We've been talking to abortion providers and I think some folks might feel is either completely different from or even opposed to those who are operating in the space of IVF. The people working really hard to reproduce versus those who, for whatever sets of reasons, may need to terminate and not reproduce in that moment in their lives.

I'm wondering, though, for the experience of practitioners, if it feels like, "Oh, I'm an IVF practitioner, I'm in total opposition to, or completely alien to what's going on with abortion practitioners," or if there is more a sense of all being within a similar space of reproductive rights?

Dr. Kim Thornton: I think one of the concerns that providers of fertility care have is while we are certainly in the business of building families, we are also creating embryos. There's the concern that the language surrounding abortion may be misconstrued or misstated, and then inadvertently be applied to, for instance, embryos, which are sitting in the laboratory.

That's one of the issues I think that currently none of the states or none of the laws within the states have included IVF or included any discussion about embryo disposition, but I think that that's one of the concerns that fertility providers have is that there may be some misrepresentation of the language and inadvertently include disposition of embryos in that language. Similarly, inclusion of manipulation of embryos or anything like that is also a concern that fertility providers have.

Melissa Harris-Perry: Are there ways that fertility providers and practitioners might be able to mitigate some of the effects of Dobbs in the short term while some of this is still being worked out week to week, month to month? This is kind of long-range view but I keep thinking there's somebody whose appointment was scheduled today in a state where Dobbs changed the law on Friday or over the weekend. I guess I've been thinking about those families and what they're facing.

Dr. Kim Thornton: I think in most of the states, currently IVF is legal in all 50 states and it's unlikely in the short term that provision of fertility care will be impacted but, again, I think we're looking at making sure that there's no manipulation of language or creating definitions that overreach, if you will.

Our business is to really help individuals build their families. That's our goal, helping them do that in a very safe way. When you talk about the strides that we've made towards single embryo transfer, genetic testing, so we have healthy embryos that we're transferring back. All of those things have really advanced the safety of IVF. Hopefully, those practices won't come into question and get wrapped into this abortion discussion.

Melissa Harris-Perry: All right. One more quick pause, and then we're back with how the Supreme Court decision could affect assisted reproductive technology in just a moment.

[music]

Melissa Harris-Perry: You're back with The Takeaway. I'm Melissa Harris-Perry. I've been speaking with Dr. Kim Thornton and Dr. Louise King about how the overturning of Roe v. Wade could affect assisted reproductive technologies like IVF. If personhood laws recognize embryos outside of the womb as having rights, practices in fertility clinics such as discarding or manipulating embryos in a lab could be subject to even stricter regulations. Regulations which could make it impossible to go forward with the assisted reproductive technologies.

Now, states with some of the strictest abortion laws, like Oklahoma, do not explicitly mention exemptions for assisted reproductive technologies in their legislation. The effect of the laws on IVF procedures is still unclear. More than a decade ago in 2011, Mississippi voters struck down a personhood amendment, which would've recognized that life begins at fertilization.

Opponents to the amendment were concerned it would have ramifications for IVF practices such as disposing of unused fertilized eggs. I asked Dr. King if that kind of discourse about personhood and the ways it might affect assisted reproductive technologies could be valuable in this moment.

Dr. Louise King: The efforts to create a personhood amendment would've created the status of person for an embryo, which would have incredibly far-reaching effects, not just essentially outlawing IVF entirely because, of course, you would not be able to create multiple embryos at once because you would have to have a very clear plan for every single embryo as a person. Then each embryo would be subject to custody laws and tax laws and inheritance laws.

As you explore the concept of personhood from an ethics standpoint, as well as its parallel concepts of the moral status of embryos, the fetus, a child, a person, you will come to realize that from an ethics standpoint, an embryo, obviously, cannot be a person, but frankly, neither could a newborn child because personhood requires, from an ethics standpoint, much more simply than a genetic connection. A fairly decent argument as a mother of a teenager could be made that full personhood doesn't even occur until your mid-20s.

What I've found, unfortunately, in having these discussions with thousands of students and people, is that they have to be open to an understanding of personhood and moral status beyond whatever their theological approach to it might be. The current Dobbs decision is based on a Christian fundamentalist theological approach to when life occurs.

There are many members of our community who do not share that view, myself, obviously, included. My belief comes from the Jewish tradition, which holds that that status would attach at birth, but, again, from a philosophical standpoint, as you approach personhood through some of the most influential writings, there are so many criteria that can come into defining when someone has really truly reached that level of sentience, that it surely wouldn't happen until sometime after birth.

Melissa Harris-Perry: Dr. Thornton, let me come back to you. Walking back a bit to the point about assisted reproductive technologies and relative wealth or status or income, acknowledging that many people are absolutely stretching, going into debt in order to try to make families. You are a member of the Diversity, Equity, and Inclusion task force of the ASRM, can you talk to me a little bit about how Dobbs, not only on the question of abortion but on IVF, might also have some effects around issues of diversity and racial justice relative to access to assisted reproductive technologies?

Dr. Kim Thornton: Certainly. I think that a lot of this will depend on what ultimate impact Dobbs has on the IVF industry. I could envision an instance where IVF might become more complicated, where we might be restricted in terms of creating multiple embryos and have to create one embryo at a time. That would make it very, very difficult for couples who would then need to potentially do multiple cycles to afford care. Very different from being able to do one IVF cycle, create multiple embryos, and have embryos available for transfer that are already created and stored in our cryo tanks.

It may limit access to fertility care in certain states. If you look at where in a minority populations may be concentrated within the United States, that may limit access to care in certain states, and they're not going to be able to travel for two to three weeks to stay in a state where they can access fertility care. I think it could have a huge impact on access to care for minority communities in particular, as well as those who have limited resources.

Melissa Harris-Perry: I want to just ask, from each of you, a final question here. Dr. Thornton, I'm wondering if there is something that you have learned in the practice of assisted reproductive technologies less in the science and more in the like what it takes to make family in this way that might help us in the culture, in the discourse, as we are trying to talk about the multiple interests here in a way that reflects being on the same side, rather than opposing sides?

Dr. Kim Thornton: Certainly. I think from my perspective, family building is a very intimate personal experience between patients and their provider, and when outside forces start to interfere with the decisions that you might make when patients are having discussions with their physicians, it's very difficult to navigate. I think that providers are going to have difficulty with that as are the patients who are coming to seek care.

Most patients want to have healthy pregnancies, and they are looking to us as providers to use the best scientific evidence that we have to help them make those decisions. These are not political decisions, in my mind, they are personal decisions. I think that it's important that we're mindful of that when we go forward.

Melissa Harris-Perry: Dr. King, I guess I want to ask something similar and I'm wondering if you could just educate the audience a bit on the Ninth Amendment and how you read that relative to Dobbs?

Dr. Louise King: Absolutely. To build on what Dr. Thornton just said, the Ninth Amendment essentially codifies the fact that as persons, all of us, as citizens of the United States, wish to have the ability to make decisions about our own bodies, about our life, our liberty and our pursuit of happiness free from unnecessary and inappropriate control from outside forces, and we are guaranteed that right despite it not being enumerated.

Sam Alito's opinion and his concurring justices were all trying to say that because the word abortion is not contained within our constitution, it was not contemplated by our founders and it is not a protected right, or a right to abortion is not a protected right. Of course, our founders were all white men, many slave owners, and they certainly didn't include women in any aspect of our constitution. There would have been no reason for them to mention abortion, which, in fact, was widely practiced at the time.

The Ninth Amendment in our constitution specifically states that even if it hasn't been enumerated, there are inalienable rights that we all hold and one of those rights is to be left alone in these personal and carefully constructed decisions that we make with our families and our healthcare providers.

Melissa Harris-Perry: I'm so grateful to both of you, Dr. Louise King, and Dr. Kim Thornton for joining us today and walking us through what just is complicated, and maybe not something that many people have thought about in this moment. Thank you for joining The Takeaway.

Dr. Louise King: Thank you.

Dr. Kim Thornton: Thank you.

[music]

Copyright © 2022 New York Public Radio. All rights reserved. Visit our website terms of use at www.wnyc.org for further information.

New York Public Radio transcripts are created on a rush deadline, often by contractors. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of New York Public Radio’s programming is the audio record