IVF process must be protected

More than 8 million babies have been born in the U.S. through the medical miracle known as in vitro fertilization, or IVF. By this practice, an egg is removed from a woman’s ovaries and fertilized with sperm in a lab, and this embryo is most often returned to her uterus to grow and develop. In cases where a pregnancy can’t otherwise be sustained, the embryo is transferred to a surrogate. Many parents who had been unable to conceive find IVF a godsend to finally raise a family.

That’s why an explosive ruling by the Alabama Supreme Court last month — that clients of a fertility center could sue under the state’s wrongful death law for the loss of stored embryos — has sparked a stir across the country.

President Joe Biden cited it in his State of the Union speech Thursday, declaring: “To my friends across the aisle, don’t keep families waiting any longer. Guarantee the right to IVF nationwide!”

That got big cheers in the House chamber. But deeper, detailed questions of bioethics, law, family priority and personal choice still hover.

In the Alabama ruling, judges went where no court in the country has gone before. They declared that “an unborn child is a genetically unique human being whose life begins at fertilization and ends at death” — essentially giving legal recognition to the notion of “fetal personhood.”

EMBRYO CASE ORIGINS

A strange incident spawned the case. In December 2020, a patient in a hospital that houses the clinic walked through an unsecured doorway and pulled embryos from a tank of liquid nitrogen in the storage room. He burned his hand — due to contact with the tank’s minus-360-degree temperature — and dropped the embryos on the floor, destroying them.

Alabama’s top court in its majority opinion referred to the embryos as “unborn children,” who were located “outside a biological uterus at the time they were killed.” The opinion caused the state’s three biggest fertility clinics to suspend operations, unable to know how they might be penalized for future mishaps.

Besieged by national outcry over the ruling and whipsawed by reactions from their own residents, Alabama lawmakers passed — and Gov. Kay Ivey signed — legislation shielding IVF providers from negligence lawsuits and criminal prosecution arising from “damage or death of an embryo” in the fertility process. Clinics restarted their activities.

The IVF debate has merged with one of the nation’s most persistent and divisive rifts: the regulation of abortion and conception. Alabama bans abortion at any stage of pregnancy with no exceptions for rape and incest. In Kentucky, some litigants claim that with a similar law in effect there, IVF is jeopardized. The Bluegrass State defines life as starting at fertilization.

NEW YORK PROTECTIONS

New York faces no such quandary. In Albany, IVF protection draws Democratic and Republican support and political machinations. Long Island GOP State Sen. Jack Martins has proposed a bill declaring embryos existing outside a person’s womb not to be human lives, thus seeking to show his distance from the red-state position.

But despite bipartisan agreement on the merits of shielding clinics and professionals from civil liability, Democrats want to wait until November, when an Equal Rights Amendment will be on the ballot, to unleash the political power of reproductive freedom in New York.

“We don’t believe at this point that there is any danger,” State Senate Majority Leader Andrea Stewart-Cousins said last week. “We don’t want to scare people to think that IVF is in danger here in New York. It is not.”

Democrats like Stewart-Cousins plan to argue that the ERA would avert government actions that would curtail a person’s reproductive autonomy or access to reproductive health care.

The effort to temper political fallout in Washington is taking a different route. Reps. Nick LaLota and Anthony D’Esposito are among five GOP House members who signed on to a resolution expressing support for reproductive technologies such as IVF. The Democratic Congressional Campaign Committee has been razzing these targeted incumbents by saying the measure “doesn’t do anything to actually protect the procedure.”

Like abortion after the reversal of Roe v. Wade, IVF is subject to state-by-state laws and regulations — while the argument rages over just when human life begins, also the subject of a long-term scientific and philosophical quandary.

Experts have examined Italy, where government restrictions on “assisted reproduction” were imposed in 2004. A Harvard Law School publication stated last year: “Clinics could create no more than three embryos per cycle and then had to implant them all once. Testing embryos, or discarding them, or even freezing them to use later was not permitted.

“The impact on fertility patients was dramatic. For older fertility patients, pregnancy rates for IVF dropped from 28% to 13%.”

So paradoxically, fewer people could go forth and multiply.

Prenatal “personhood” has always been a cultural and intellectual thicket at the foundation of our abortion debate. Now the enshrinement of this concept in Alabama’s law, propelled by the state’s 2018 “sanctity of unborn life” amendment, serves to make us reexamine the legal framework around using modern science to foster life. IVF, with all its inherent complexities, must continue to be a legally protected medical procedure, despite it being thrust into enduring and harsh political conflicts.