Abortion and Infertility: Now we must pivot…
As a grassroots organization, Michigan Fertility Alliance has always tread carefully on conversations around the abortion debate in the United States and what should happen to Roe v Wade.
That is in large part because fertility is a non-partisan issue, with one in eight people in the United States (and across the globe for that matter) suffering from infertility at some point in their lives. Not one in eight Republicans or one in eight Democrats. Nor even one in eight independents. Infertility does not discriminate based on race, religion, ethnicity or sexual orientation. With that in mind, we have always recognized that our members and advocates have intense and personal feelings about abortion. So, we have always aimed to remain neutral on the subject.
But now we must pivot.
The reversal of Roe v Wade in June by the United States Supreme Court could have profound ramifications for fertility treatments. Abortion has never been just about unwanted pregnancies or as an alternative to birth control (as those against choice often present it as such). Abortion has also always been about a woman’s autonomy over her own body. Abortion has also always been about health care. Abortion laws might have implications for ART.
Roe v Wade was enshrined into law BEFORE the first traditional surrogacy contract in the world was signed in 1976 in Michigan. Roe v Wade was enshrined into law BEFORE the world’s first baby was born through IVF in 1978 in England. Roe v Wade was enshrined into law BEFORE the world’s first baby born via a gestational carrier was born in Michigan in 1986. It could be argued that if it were not for Roe v Wade, advances in ART –at least in the United States—may not have happened in terms of embryo creation. According to Dr. Nathalie Crawford, a Texas-based OBGYN who focuses her practice on infertility, the technology of IVF could only come to “exist under the protection of Roe.”
But breaking it down—how are abortion rights and ART connected? Simply put, it takes embryos to have a pregnancy. Some abortion trigger laws— as well as impending draft laws— define the start of life as the moment of fertilization, meaning that it includes not only fetuses but also embryos and even fertilized eggs. The argument around fetal personhood-- a movement advocating that a fetus should have the same legal protections as people— could create havoc when it comes to fertility treatments. Just one of those issues is around genetic testing.
As something standard these days, embryos can be examined for a plethora of health concerns and genetic mutations that could lead to either pregnancies that are not viable--and could potentially put the mother's life at risk-- or babies that might be born with debilitating abnormalities and short life expectancies. There are, of course, also issues around selective reduction that can also come into play in the debates around abortion and fertility treatments.
Karla Torres, senior human rights counsel for the Center for Reproductive Rights told Rollcall that overturning Roe could, “really open the door to legislative interference, not only with reproductive decision-making but also around decisions to build families through assisted reproduction, specifically IVF.” Ms. Torres went on to say that there was concern that people using IVF—and their physicians—could face criminal liability for miscarriages, freezing or discarding embryos. Therefore, it is not an unfounded concern that people using IVF and their doctors could face criminal liability for miscarriages, or freezing or discarding embryos.
Dana Sussman, the deputy executive directive at the National Advocates for Pregnant Women, told Time that, “the challenge for many of us is that we will be living in a legal gray area for a long time.” She added that case law, “will have to be developed, or statutes will have to be clarified, because the scope of [Roe’s fall] is just so monumental, I don’t know that anyone truly has an answer to how this will all play out.”
A recent Washington Post article reported that while many state legislatures have passed laws against abortion, they have included “explicit exceptions for the fertility industry” and of the 83 bills that have been introduced or passed since 2010 that mention both abortion and IVF, 45 of those have exempted ART and IVF. And the writers found that, “none of these bills explicitly included IVF — or any reproductive technology — in banning abortion or defining legal personhood” that begins at conception. “It’s going to have to be a process where we see what kind of laws get passed, see what the laws in existence are, and try to make some determination about what can happen with those,” Sean Tipton, the chief advocacy, policy, and development officer at the American Society for Reproductive Medicine (ASRM), said recently.
Earlier this week ASRM released a report examining 13 state abortion trigger laws and what effect they might have on fertility treatments. The introduction to the report “The Potential Impact of States’ Abortion Trigger Laws on Reproductive Medicine” stated that while the overturning of Roe v Wade doesn’t automatically restrict access to ART procedures, “the details of state law are critical to understand, as overly broad statutory language and definitions could, intentionally or not, implicate and even ban such procedures.” The report went on to find that, “state actions in its wake have the potential to severely limit the ability to provide high-quality, patient-centered maternal health care.”
The banner for the website Michigan Reproductive Freedom
In Michigan, the potential of what could happen in terms of aborton legislation and infertility is as clear as mud. Republicans who control the state legislature want to update a 1931 abortion ban that, among other things, made abortion a felony for pregnant women and doctors, even in the cases of incest and rape. House Bill 6270, the Protection at Conception Act, which was introduced by Rep. Steve Carra right before the SCOTUS decision, wants to see doctors –not pregnant people—subject to imprisonment for up to 10 years and fines upwards of $100,000. And although abortion would be allowed to save the life of a pregnant person, the bill purposely excludes mental health and does not provide clarity as to what constitutes as a medical emergency.
Governor Gretchen Whitmer earlier this year used a special executive power to ask the state’s Supreme Court to rule “without a case before them” on the constitutionality of that 90-year-old law, which had been dormant since the ruling in 1973 on Roe v Wade. Meanwhile, a final push was being made last week to collect “wet” signatures to put reproductive rights on the ballot in November with the proposal of a constitutional amendment: “Michigan Right to Reproductive Freedom Initiative.” That potential law would protect the right of families to make decisions about all matters that relate to pregnancy, including abortion and infertility care. Michigan Fertility Alliance will continue to carefully watch—and lobby—to keep infertility care legal and safe.