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What could happen to IVF in a post-Roe vs. Wade era?

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The manager of BioArt Fertility Clinics lab prepares thawed blastocysts during an in vitro fertilization process in Johannesburg, in February.

In vitro fertilization was developed in 1978, five years after Roe vs. Wade became the law of the land. Now, with the Supreme Court potentially overturning the landmark abortion-rights case, IVF research and advances might be halted. Luca Sola/Getty Images

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If the Supreme Court overturns Roe vs. Wade, many are wondering what that will mean for in vitro fertilization, or IVF. That is when eggs are fertilized in a lab and then embryos are implanted in a patient, frozen for later use, donated or disposed of.

If Roe is overturned, states could decide those embryos have “personhood” status, thus subjecting IVF to new restrictions.

Dr. Eve Feinberg, an associate professor of obstetrics and gynecology at Northwestern University, told Marketplace’s Kimberly Adams that giving embryos personhood status conflicts with modern medicine. The following is an edited transcript of their conversation.

Eve Feinberg: Scientifically, those cells just aren’t viable outside of the human body. And so with situations where embryos are lost in the culture process, the natural attrition that happens all of a sudden could become criminalized. I can’t think of physicians that are going to want to practice in that environment.

Kimberly Adams: How has the technology around IVF changed in the last few decades?

Feinberg: Probably one of the best improvements is the advent of something called vitrification. Vitrification does a rapid freezing technology that really preserves our ability to freeze an embryo. And that single technology has led to a reduction in the number of embryos that we transfer because we know that we can freeze them and save them for later. The second is the use of pre-implantation genetic testing. And you can do that to look at single gene disorders, things like cystic fibrosis, or fragile X syndrome, or Tay-Sachs. Or you can also do that to look at whole number of chromosomes to reduce the likelihood of having a fetus with multiple health complications. And so we have the ability to select which embryos are healthiest because you can freeze the embryos while you are waiting to get the genetic testing results back. There are lots of other technological advancements that are happening in the field: oocyte vitrification, or egg freezing, utilizes that same embryo freezing technology. But now we have the ability to freeze an egg unfertilized and use those eggs in the future.

Adams: For those who do believe that life begins at fertilization, hearing you talk about picking and choosing those embryos and not implanting those that might have severe disability or disease might sound a lot like eugenics to them. How do you talk to people about that?

Feinberg: It’s a delicate conversation, and, admittedly, there is a very fine line between the utilization of IVF technology for the prevention of disease and eugenics. Where I practice, we only do IVF for medical indications. If we have a couple who has three boys and is not infertile, and they simply want to have a female, we don’t offer IVF for nonmedical indications. But admittedly, there are places that do. And so I see the side of where this can be criticized. But I think when you use IVF technology responsibly, you have the potential to save lives.

Adams: How did the fact that Roe has been law in the United States for all these years shape the way that IVF technology and fertility treatments developed here in the U.S. compared to in other countries?

Feinberg: It goes back to the idea of viability and the idea of when life begins. And I contrast IVF in Italy, which is a religious country, and similarly believes that life begins at fertilization. IVF practices in Italy, a decade ago, were severely restricted. The high-level picture is that IVF in the U.S. is safer, and it’s more effective than IVF in Italy. And so in Italy, the law required at that time, and it has subsequently been revised, but the law required that only three eggs could be fertilized and that everything that was fertilized had to be transferred back to a woman. And so what would happen is you would have a really young patient who had to get three embryos transferred because everything had to be transferred. And that woman would end up with triplets.

Alternatively, you would get a woman who was 42, where only 10% of her eggs are actually going to be viable, but you are only able to fertilize the three. And so the woman would have to go through repeated IVF cycles in order to get one good embryo. Let’s contrast that with the U.S. In the U.S., we stimulate the woman’s ovaries, we take out a whole bunch of eggs, and then we have the ability from that single stimulation cycle to pick the best embryo for transfer. That not only increases the likelihood of success, but it also decreases the multiple pregnancy rate. And so we have the ability to fertilize and then to store and to save those other embryos that have the potential to be babies and save those for the future so that when a woman wants to come back and have a second child, she has frozen embryos. And this allows couples to have as many children as they want to have, without having to go through multiple cycles. And so it saves money, it increases the efficiency of the procedure and it increases the safety by reducing the rest of both the mom and the babies.

Adams: What sorts of technological or treatment advancements are researchers working on now in the field of IVF?

Feinberg: Possibly CRISPR and gene editing. And rather than embryo selecting, being able to edit the egg or edit the sperm to get rid of the disease. Is that on the horizon? Probably. Are we there yet? No. There’s lots of technological advances that we’re looking at to understand which embryos will implant, how long can we grow an embryo in the laboratory. Right now, legally, we don’t go beyond 14 days. But that may change. We’re learning so much about the human embryo, and even a chromosomally normal embryo still only has about a 60% to 70% chance of implanting and becoming a baby. And so there’s a lot of research that’s out there that’s looking at the why, like what other factors are at play, and why doesn’t every embryo become a person?

Adams: And what happens to that research if Roe is overturned?

Feinberg: Right now, there are strict bans on what is able to be done with federal funding. And that’s the Dickey-Wicker Amendment that basically prevents anyone who has federal funding to do any sort of embryonic research. So a lot of this embryonic research is happening in the private sector outside of the university setting. And I think that funding is only going to become so much more scarce in the era of Roe being overturned.

Adams: In light of the news of the leaked Supreme Court opinion, what’s been the response from some of your patients?

Feinberg: Fear, sadness, anger. Most of my patients don’t have children, or they have one child and they so desperately want a baby, and that abortion legislation, ironically, is going to inhibit their ability to have a child.

The Washington Post has a story from 2018, around 40 years after the first IVF baby was born, discussing the evolving conversations on IVF and religion. The piece points out some religious groups have come to embrace the practice while others are opposed.

Feinberg also talked about the slippery slope regarding genetic testing. Anti-abortion group Students for Life has a page on its site laying out its concerns about IVF and genetic screening of embryos.

And finally, these are articles in The Oklahoman and Tulsa World about the Oklahoma state legislature’s recent passage of the nation’s strictest anti-abortion law. That legislation would ban abortion at any point between fertilization and delivery, which has some people wondering what that means for the future of IVF in that state.

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