15 Oct 2020 Barrett Confirmation Could Pose Threat to In Vitro Fertilization
While advocates for reproductive freedom brace for an assault on abortion rights with the potential confirmation of Amy Coney Barrett to the U.S. Supreme Court, fertility professionals fear that access to common infertility treatment such as in vitro fertilization, or IVF, might also be in jeopardy.
As the Senate hearing on the conservative judge’s nomination to the U.S. Supreme Court winds down to its preordained conclusion, lawmakers, fertility professionals and consumer advocates warn that Barrett’s confirmation could mean not only the reversal of Roe v. Wade but the criminalization of in vitro fertilization (IVF).
This is not an exaggeration. Although she has refused to provide any substantive answer about her stance on a wide variety of issues during the confirmation hearings, her record on the bench and her personal feelings are very, very and startlingly clear. As a potential justice on the U.S. Supreme Court, Amy Coney Barrett is an unquestionable danger to IVF.
Fertility Experts Defy 72-Year Tradition to Condemn Barrett Confirmation
The editors of Fertility and Sterility, the American Society for Reproductive Medicine’s flagship international journal for medical professionals, agree. On October 12, they broke with 72 years of tradition of not opining on a SCOTUS nomination, calling on senators to reject Barrett's nomination.
"The seating of Amy Coney Barrett to the Supreme Court threatens those who seek to build a family through in-vitro fertilization. Legislation that restricts doctors from standard treatments today that carefully manage an egg with a sperm inside would render those procedures impossible to perform. Frighteningly, any procedure that might risk the embryo’s viability would put physicians at risk for criminal violation."
The concern of the three authors, all highly regarded fertility physicians, is based on Barrett’s legal opinions as well as her public affiliation with organizations that promote the view that life begins at fertilization.
In particular, Barrett and her husband signed onto a full-page anti-abortion advertisement in her hometown newspaper, the South Bend Tribune, sponsored by St. Joseph County Right to Life, also known as Right to Life Michiana.
“The first page of the ad, which is signed by Barrett and her husband, Jesse, states that life begins at ‘fertilization.’ The ad, which the organization publishes every year to mark the anniversary of Roe v Wade, was signed by Barrett while she was working as a law professor at Notre Dame."
Barrett also was a member of the University of Notre Dame’s “Faculty for Life” group, the report continues, and in 2015 signed a letter to Catholic bishops affirming the “value of human life from conception to natural death.” She also joined in the dissent against a decision to overturn an anti-abortion law signed by then Indiana Governor Mike Pence that would have mandated fetal remains to be buried or cremated, The Guardian reports.
‘Personhood’ Laws Stake Out New Front in Anti-Abortion Movement
The concept that life begins at conception has implications far beyond merely banning abortions. As the Fertility and Sterility editorial continues:
"There have been numerous attempts over the years to pass legislation defining human life as the immediate union of sperm and egg, while the majority of these fertilizations in nature are lost, leading to such odd legal movements as attempts to mandate funerals for miscarriages. One such proposal was HR 586, “The Sanctity of Human Life Act,” commonly referred to as a Personhood bill. These bills seek to supplant the scientific concept of embryonic viability with personal beliefs instead, ascribing to a cell “all the legal and constitutional attributes and privileges of personhood” that most likely in nature will not lead to live birth. [Barrett’s] signing of a full-page newspaper advertisement in 2006 supporting the basis of this view demonstrates clearly that she is fully part of this fringe, antiscience stance."
In use since the late 1970s, IVF is an effective multi-step fertility treatment in which an egg is fertilized with sperm outside of the body to create an embryo. The embryo can be implanted in the uterus of the biological mother or a surrogate, depending on the circumstances, who carries the embryo to term. Without a successful implantation, the embryo does not grow into a fetus.
Even in natural procreation, many embryos are created but do not successfully implant in the uterus. In those cases, the existence of the embryo is never known to the mother.
Yet, if every embryo were deemed to be a legal person, even an unknowing expectant mother would be committing a crime if the embryo did not survive. Surely that is a ludicrous outcome—but that would be the effect of granting legal “personhood” status for every embryo, as Barrett, based on her public positions, advocates.
IVF Process Results in Unused Embryos
The IVF process typically produces multiple embryos, not all of which are viable. The IVF physician assesses and chooses the strongest, most viable embryos for implantation.
In the early days of IVF, when technology was less reliable, doctors typically recommended implantation of two or more embryos, as a way of increasing the odds that one embryo would successfully implant. Of course, this resulted in many multiple pregnancies, leaving parents and/or surrogate with the decision of whether to reduce the number of embryos or assume the significant risk of carrying multiples to term.
Since then, with perfection of the technology, IVF best practice has evolved to implantation of a single embryo, which reduces risk to mother or surrogate and increases the likelihood of a healthy pregnancy and birth.
But while technological advances have reduced the number of embryos implanted, the IVF process still produces multiple embryos—in many cases far outnumbering the number of children the intended parents or parent want to bring into the world.
Often excess embryos are cryopreserved and stored for a potential future addition to the family, or parents may decide to have them donated to an agency for adoption, donated for medical research, or destroyed.
At the time of the IVF treatment, intended parents are required to sign a medical consent form establishing how any excess embryos will be used or disposed of, including the disposition of embryos in the event parents separate, divorce or die.
Embryo Personhood Could Make IVF Illegal
Decades of increasingly effective IVF treatments have resulted in millions of frozen embryos stored in cryopreservation facilities all over the United States. In fact, abandoned embryos—frozen embryos whose owners have stopped paying storage fees—has become a huge problem. As we wrote in 2017, “Today there are an estimated 600,000 to 4 million frozen embryos stored in the United States that are abandoned or unclaimed, representing an enormous burden for clinics and storage facilities.”
But if every embryo produced through IVF is a person from the moment the egg is fertilized, what are the ramifications for people seeking infertility treatment or for single or LGBTQ people who want to use IVF to create families of their own?
As the Fertility and Sterility physicians’ letter continues, any legislation that establishes the “personhood” of unborn and frozen embryos threatens the legality of the IVF process. Discarding excess embryos or those with genetic disorders would be illegal.
“Physicians would be forced to transfer all embryos, resulting in greater health risk to women and lower pregnancy rates as has been repeatedly demonstrated in countries that do not impose these restrictions. Scientific advances in the field would come to an immediate and devastating halt without the ability to continue reproductive research. In the more than 40 years since the first live birth from in-vitro fertilization, Louise Brown, progress in the field has been astounding. 1.5% of all babies today are born as a result of in-vitro fertilization. The long-term human, social, and economic benefit to our country from these families granted children through in-vitro fertilization is significant.”
One immediate consequence of “personhood” laws would be to raise the cost of IVF treatment beyond the range of most ordinary individuals. Practically speaking, an IVF physician would be forced to severely limit the number of eggs fertilized and thus the number of embryos produced. Handling and processing of the delicate embryos would be fraught with peril. Instead of maximizing the number of viable embryos to increase chances of success, physicians would be forced to limit the number of embryos available, potentially forcing intended parents to start all over again with the egg harvesting and fertilization process.
For many intended parents, IVF is not successful on the first try. In 2008, my husband, Tommy, and I became dads to twin boys through egg donation, IVF and surrogacy. Our experience was not unusual. As I wrote about our experience:
“An egg donor typically produces between five and 35 eggs or more per cycle. In the case of Tommy and me, our first cycle with the egg donor yielded 13 eggs, 11 of which were successfully fertilized. Although 13 eggs was somewhat of a low yield, we were excited to have 11 fertilized eggs…. [W]e ended up with three viable embryos, all day 5 blastocysts. Although that high rate of attrition was disappointing, it is not uncommon with in vitro fertilization.
“We did not get pregnant, and we started the process all over again.
“When a cycle doesn’t take, it can take 30 to 45 days, or more, before you can try again. On the second round, we got 17 viable eggs, of which 13 were fertilized. But by the day of the implantation, there were only four viable embryos.”
Happily, the pregnancy took on the second try, and we were blessed with healthy twins. I cannot imagine how much more difficult and stressful our journey to parenthood would have been had our physician been forced to treat each embryo as a person.
Arizona Embryo Custody Law Mandates Forced Reproduction
In 2018, as we reported then, Arizona legislators passed a precedent-slamming law that requires courts in divorce cases to award custody of any existing embryos to “the spouse who intends to allow the in vitro human embryos to develop to birth.”
The law, initiated by the ultra-conservative Center for Arizona Policy, is a back-door run at a right-to-life and personhood bill. While it is not as blatant as the personhood bills advanced in other states, it sets terrible legal precedent, disregarding the couple’s intentions at the time the embryos were created and rendering their embryo distribution agreement unenforceable. If assisted reproduction were not involved, it would be tantamount to the court’s second-guessing a couple’s intentions in the bedroom at the time they had coitus.
Although the Arizona law has yet to be tested before the Supreme Court, it is but one of a number of cases being queued up for challenges. In the case of the Arizona law, “the spouse that is not awarded the in vitro human embryos has no parental responsibilities and no right, obligation or interest with respect to any child resulting from the disputed in vitro human embryos” unless he or she “consents in writing to be a parent.” Further, “if the spouse who is not awarded [the embryos] does not consent to being a parent… any resulting child from the disputed in vitro human embryos is not a child of the spouse and has no right, obligation or interest with respect to the spouse.”
Although the law absolves non-consenting parents of financial and legal responsibility, it still in effect forces them to procreate against their will—surely grounds for a constitutional challenge.
Barrett’s Public Record Reveals Hostility to Reproductive Freedom
Barrett’s almost certain confirmation to the Supreme Court makes the outcome of that challenge less certain.
The ultimate outcome of the Barrett hearing before a Republican-controlled Senate has never been in question. Long before Supreme Court Justice Ruth Bader Ginsburg was laid to rest, Republican Senators and President Donald Trump had already made it clear that they would act to fill her seat quickly. Barrett’s confirmation to hold Ginsburg’s seat would establish a 6-3 conservative majority on the Court.
During the course of the hearing, Barrett has steadfastly refused to say how she would rule on the 1973 Roe v. Wade decision establishing a woman’s right to an abortion under the 14th Amendment to the U.S. Constitution, or on other cases of reproductive choice.
But as VP candidate Senator Kamala Harris, a member of the Senate Judiciary Committee, pointed out on day 2 of questioning, Barrett has already expressed her opinions on those topics publicly, in multiple position papers, in paid public advertisements opposing a woman’s right to choose, and in opinions from the 7th U.S. Circuit appellate bench.
On the hearing’s second day, Barrett, under questioning by Senator Amy Klobuchar, admitted that she does not consider Roe to be a “super-precedent”—in effect signaling that she would be receptive to reconsidering the case.
“I would suggest that we not pretend that we don’t know how this nominee views a women’s right to choose or make her own decisions,” Harris said during her own questioning.
As I wrote recently, Supreme Court justices often do not rule in the ways they are expected to rule by the politicians who nominate and confirm them. Their lifetime appointments protect them from most political pressure. But in the public record, Amy Coney Barrett leaves little doubt that both her personal and legal views are hostile to reproductive freedom and a woman’s right to choose. Like Harris, I recommend that we take Barrett at face value and be prepared for an onslaught of challenges to some of the most established legal protections we now enjoy.
Tell Your Senator to Protect Americans’ Right to Fertility Treatment
By all indications, the Republican-controlled Senate is intent on confirming Barrett. Committee Chair Lindsay Graham has scheduled the committee’s vote for Thursday, October 22, and plans to take the nomination to the full Senate on October 23. Senate Majority Leader Mitch McConnell says he has the votes to confirm Barrett, and the full Senate is expected to vote early in the week of October 26.
While the outcome of this confirmation process seems pre-ordained, the potential fallout for infertile couples and for LGBTQ or single intended parents would be catastrophic, and silence is not an option. Please reach out to your Senators and share your concerns about this threat to leading infertility treatments and to our reproductive rights.
For contact information for your Senator, visit https://www.senate.gov/senators/How_to_correspond_senators.htm and click on the Find Your Senators button at top left. Or call the U.S. Capitol Switchboard at 202-224-3121 and ask to be connected to your Senator’s office.
The fertility lawyers and paralegals at IFLG are active both within the legal profession and in advocacy organizations in fighting for equal reproductive rights for all individuals. We are happy to answer your questions about assisted reproduction law and how to ensure your family is legally protected.