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Abortion bans across the country have called 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 continuing with procedures for now.
Similar to other “trigger laws” enacted to ban abortion after the U.S. Supreme Court struck down Roe v. Wade, a Texas law passed last year expands the definition of an “unborn child” from beginning at “fertilization” to include the “embryonic” stages.
This kind of language can raise questions about “personhood” and embryo rights in IVF and other fertility treatments, said Dr. Natalie Crawford, 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 remove them to fertilize them with sperm in a lab. The eggs are then allowed to develop into a blastocyst or embryo at the implantation stage.
Crawford said it allows doctors to select the embryo they think has the “greatest chance of success” for a pregnancy to be put back into the woman’s womb 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 needs the embryos, they decide to throw them away as medical waste, donate them to scientific research or donate them to another couple, she said. It is this step in particular that raises questions for IVF treatments in the face of the ban on abortion.
“The thing we are most uncertain about is, ‘Could this have an impact on embryo rejection, like when someone is done with their family and they have embryos left? “, Crawford said. “Or if they have genetically abnormal embryos, could that potentially make it more difficult to eliminate them?”
Some also worry about doctors’ ability to perform genetic testing.
Currently, Crawford and other fertility doctors in Texas and other states are pursuing IVF treatments because most abortion laws focus on embryos during pregnancies, not in outside the womb.
“Although they contain phrases like ‘every stage of human development’ or ‘from the moment of conception’, which makes us nervous, they are written in a law that is clearly about terminating an established pregnancy. “said Sean Tipton, senior policy and advocacy officer for the American Society for Reproductive Medicine.
The American Society for Reproductive Medicine has broken “trigger laws” across the country, based on its lawyers’ analysis, and says Texas’ trigger law “does not appear to apply to services IVF and reproductive medicine before embryo implantation”.
The ASRM found that similar laws in 11 other states most likely exempted IVF and assisted reproductive technologies from abortion bans, but its lawyers warned that Utah’s laws “could be interpreted as impacting on assisted reproductive technologies under a provision against the “intentional killing or attempted killing of an unborn child alive by a medical procedure”.
The law focuses primarily on pregnancies, but the term “live unborn child” is not defined and could allow people to “argue that the rejection of an embryo or the donation of an embryo for research is the intentional murder or attempted murder of an unborn child alive,” according to the ASRM analysis.
In Arkansas, Alabama and Oklahoma, attorneys general’s offices clarified anti-abortion laws shouldn’t have implications for IVF, but Idaho’s attorney general said it would be up to it’s 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 Texas Tribune request for comment.
Tipton said ASRM and its members are also concerned that the courts will interpret these laws differently and possible changes as state legislatures reconvene.
“We can’t talk about what state lawmakers might be doing in the next six months or a year and a half,” he said.
Texas’ trigger law is set to go into effect 30 days after the Supreme Court issued a formal judgment overturning Roe v. Wade, following its late June opinion against the landmark 1973 ruling that established constitutional protections for the ‘abortion.
State Representative Giovanni Capriglione, a Southlake Republican who first introduced the legislation, did not respond to a request for comment.
Meanwhile, the Texas Supreme Court has ruled that the state’s 1925 anti-abortion laws, which were challenged in Roe v. Wade, can come back into effect because they were never repealed by the state legislature. These laws were written before the first IVF baby was born in 1978, but they also focus on pregnant women and prohibit acts in which an embryo is “destroyed in the woman’s womb”.
Two of Texas’ best-known anti-abortion groups — Texas Alliance for Life and Texas Right to Life — also say state laws and the newer 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, which is the child of a woman known to be pregnant,” said John Seago, president of Texas Right to Life, pointing to a act that the Legislative Assembly amended a few years ago. there are describing what counts as an abortion.
“There’s also no abortion outside of a woman’s womb, so when you look at what’s happening in the lab with assisted reproductive technology, it’s not the destruction of an embryo “, he added.
This language likely leaves IVF treatment untouched, legal scholars told the Tribune. A district attorney could decide to try to test the issue by filing a lawsuit against a fertility doctor, said Josh Blackman, professor of constitutional law at the South Texas College of Law Houston. But he added that challenging IVF does not appear to be a “ripe” area for action in the anti-abortion movement.
Seago said Texas Right to Life is concerned about the “destruction” of “excessive” embryos, particularly in medical research, but the issue is not among its priorities for the 2023 Texas legislative session. Instead, her priorities include enforcing existing laws against abortion and providing greater support for pregnant women.
Amy O’Donnell, spokeswoman for the Texas Alliance for Life, said the group has yet to finalize its legislative priorities, but said the group supports a law passed in 2017 requiring the Texas Department of Family and Protective Services to post information on its website. about donating embryos to others to promote the option.
A bill introduced in 2019 sought to ban state agencies from contracting with vendors affiliated with ‘destructive embryonic stem cell research’, human cloning and abortions, but the legislation did not win. in popularity.
In Louisiana, embryos are stored because the state prohibits the destruction of embryos unless they “fail to develop further” within 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 they reach the size of their birth. desired family or after a divorce or death. of a partner. And while donating embryos to other patients may be an option, some people may not be comfortable with it, she said.
“It’s a personal decision for most of us,” she said. “An embryo doesn’t exist as a person without a uterus to implant into, and that’s what biology tells us all the time because many embryos don’t implant and become people.”
For now, Crawford said she advises her patients not to rush to transfer their IVF treatment to other states without an abortion ban, because “transporting embryos is not without risk. in itself”. Instead, she says patients should “stay seated” and wait carefully.
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