On International Women’s Day 2024, the ELSI Hub (Ethical, Legal, and Social Implications of Genetics and Genomics) hosted their monthly Friday Forum entitled “The Impact of Dobbs on Emerging Reproductive Technologies.”

After the 2022 US Supreme Court decision Dobbs v. Jackson Women’s Health Organization, federal protections for abortion were overturned, raising ethical questions surrounding the legal protection of assisted reproductive technologies (ARTs) and embryos. Moderated by reproductive scholar Kimberly Mutcherson of Rutgers Law School, the event featured a conversation between Sigal Klipstein, a reproductive endocrinologist, and Judith Daar of the Chase College of Law at Northern Kentucky University.

To begin the forum, Sigal Klipstein of the University of Chicago presented on the bioethical concerns associated with reproduction and ART, such as in-vitro fertilization (IVF). She framed the discussion with the realities of natural conception: out of every 100 heterosexual couples trying to get pregnant in a menstrual cycle, only an average of twelve babies will come to term. “Reproduction is not an exact science,” said Klipstein—not every egg becomes an embryo, nor does every embryo become a child.

With regard to technologies such as IVF, Klipstein presented three main ethical concerns that Dobbs may impact. The first are supernumerary embryos, or the extra embryos created during the fertilization process. In one round of IVF, physicians will attempt to create and implant viable embryos out of multiple eggs to increase the chances of success. The excess embryos are necessary to the process, but raise ethical considerations regarding what is to be done with those that are not used by the parent(s). If fetal personhood is taken to an extreme in the wake of the Dobbs case, these “discarded embryos” will be legally regarded as children.

When there are supernumerary embryos produced, is it ethical to compel patients to become parents when they have no desire to? In certain cases, patients may choose cryopreservation, or freezing embryos in storage facilities to preserve them. This, in addition to already expensive IVF treatments, is a costly endeavor. Who should be responsible to pay for this storage? Additionally, it is not possible to freeze embryos in perpetuity. Klipstein noted that some patients never end up retrieving frozen embryos. In this case, does a physician have the right to discard them eventually?

Another ethical concern is preimplantation genetic testing (PGT). With PGT, clinics can test for the 46 chromosomes and spot genetic variability, such as down syndrome, or single gene disorders, such as cystic fibrosis or sickle cell anemia. Currently, Klipstein said, physicians can test for around 500 unique disorders, and there are questions regarding what decisions can be made using this information. Can a physician compel an individual to birth a child with a genetic disorder? If miscarriage is inevitable with a specific embryo, should the embryo be discarded?

Concerns regarding the status of embryos can become even more complex when an additional stakeholder must be considered, as in the case of gestational surrogacy. Klipstein remarked that while the surrogate is carrying an embryo of which they are not the parent, they have a right to bodily autonomy. Could an intended parent prevent a surrogate from terminating a pregnancy? How should the interests of intended parents and gestational carriers be considered when regarding the legal rights of an embryo?

To add to Klipstein’s insights about the biology of reproduction, Judith Daar contextualized the impact of Dobbs within the American legal landscape. According to CDC data from 2021, births utilizing IVF made up 2.3% of total births, far exceeding the rate of neonatal adoption. IVF data is reported to the CDC annually by mandate of the federal government, and it is one of the only subspecialties in medicine that is regulated to such an extent.

The constitutional basis for reproductive autonomy goes back to the landmark 1942 case Skinner v. Oklahoma, which established procreation as a basic civil liberty. About 30 years later in 1973, Roe v. Wade legalized abortion by striking down several Texas laws that criminalized abortion it, and, in 1992, reproductive autonomy was protected under the American constitution in the case Planned Parenthood v. Casey. Now with the recent case, Dobbs v. Jackson Women’s Health Organization, Roe was overturned and the life of the unborn was elevated above the interests of the pregnant individual, as Daar put it. Although ARTs were not explicitly mentioned in Dobbs, they could be impacted indirectly by the decision’s implications.

There are several clinical aspects of IVF that could be vulnerable to regulation: embryo discard, cryopreservation, and selective reduction of multiple pregnancies, among other issues. Some are uncomfortable with the idea of discarding fertilized embryos, and in the case of PGT, issues of eugenics and disability rights are also considered. Through Justice Samuel Alito’s emphasis on the concepts of “potential life” and the rights of the “unborn human being,” there may be a connection between legal protections for embryos and ART. 

However, there are also reasons to believe that IVF and ART more generally will remain unregulated at a policy level. State legislatures that ban or restrict abortion define it as the termination of a pregnancy, so extracorporeal embryos (those outside the uterus) are likely not within the law’s reach. Additionally, backlash against Dobbs led to five states with abortion restriction laws including explicit carve-outs for IVF.

The legality of reproductive technologies is especially relevant right now with the Alabama case LePage v. Center for Reproductive Medicine. Although facts have not been confirmed thus far, a patient at a clinic in Alabama allegedly dropped and shattered a straw containing embryos after removing the container from a cryopreservation tank. In addition to suing the clinic for negligence among other claims, the couples affected sued for wrongful death of human beings. The clinic may be subject to criminal liabilities for manslaughter, and this is the first time the court has permitted embryos to be treated as persons and not property, according to Daar.

In response to subsequent stoppage of many IVF procedures, the Alabama legislature recently enacted a bill providing nearly blanket protections for physicians performing IVF treatment. The bill noticeably did not deal with the relevant modern question of the personhood status of an embryo, and some are concerned that patient rights are effectively stripped in this case. The pendulum may have swung too far in the other direction, said Daar, giving physicians too many rights over patients where it was the opposite before. Before this case, it seemed unlikely Congress would act on the issue of IVF due to its bipartisan support, but they may become more protective of IVF measures given recent events.

After initial presentations from Klipstein and Daar, Mutcherson synthesized their claims, emphasizing how a lot of the discussion around reproductive choices has been built off of the premise that every fertilized egg is destined to become a baby. As this is not biologically possible, what does this say about how we should think about IVF regulation? Klipstein responded to the prompt by questioning the overlap between law, religion and science within modern American society. Legal or religious philosophies might not mesh perfectly with medical processes, according to her. Medicine is inherently imperfect and comes with risks; not every embryo will lead to a baby.

The idea that every viable embryo must be used may compel women to carry pregnancies they do not desire, said Klipstein. Additionally, physicians can not practice IVF without being able to select embryos from a group. Daar turned the conversation to the idea of “potentiality” as courts have been considering the legal status of embryos since 1992, with the Tennessee case Davis v. Davis. In this case, embryos were categorized separately from persons or property as they have the “potential” of becoming human beings. Daar noted that in the legal sphere, there is a notion that every frozen embryo is destined to become a “marvelous, transformative figure,” when in reality this mode of thinking may suppress some medical practices.

Mutcherson then turned to the practical reality of IVF regulations. What could requirements look like if the US government decided to regulate IVF? Daar referred back to the Alabama case, claiming that if Alabama was serious about embryos being considered children, this could imply regulations similar to those that existed in Europe. Italy previously had a law in which every embryo had to be implanted, and many individuals ended up with no viable embryos while others experienced a higher rate of multiple pregnancies. Laws like this one, or laws that restrict the numbers of eggs that can be extracted during a cycle, could be enacted.

In closing the event, the panelists raised concerns about health equity in relation to IVF and abortion. While IVF is costly and mostly sought out by individuals and couples with sufficient means, abortions are correlated with lower income and racially marginalized populations. It is not insignificant that policymakers are “rushing to protect one reproductive choice and criminalizing another,” said Daar. 

To continue the conversation about bioethics, genes, and medicine, the ELSI Hub hosts a forum on the second Friday of every month at noon as well as numerous educational events.

Image via Bwarchives