Embryo-Dumping Fertility Industry Is Panicked Over The Potential Overturn Of Roe V. Wade

The likely overturning of Roe v. Wade has panicked many reproductive technology advocates, specifically the American Society for Reproductive Medicine. When abortion policy is decided by individual states, personhood laws such as Louisiana’s Human Life Protection Act and Texas’s Heartbeat Act could immediately criminalize many aspects of Big Fertility’s business model. That’s because destroying human life is part and parcel of in vitro fertilization (IVF). 

The violation of lab-created children’s right to life begins in the petri dish. First, IVF often involves the preimplantation screening of 6 or 7 day old blastocysts (early embryos), to not only determine the likelihood of implantation success, but also screen for chromosomal abnormalities such as Down Syndrome, and inherited genetic anomalies such as breast cancer, cystic fibrosis, and spinal muscular atrophy. Only the tiny humans determined to be “genetically healthy and normal” are transferred for implantation or frozen for future use. The rest are discarded.

Researchers have found, however, that embryos with abnormal cells have the ability to self-correct, or push the abnormal cells out and replace them with normal cells. Eliminating these early embryos, of course, therefore destroys untold numbers of developing human beings that might have later been designated as “good quality.”

Judith Daar of Northern Kentucky University believes the genetic testing that is routinely performed on embryos could be banned as a result of personhood laws, according to CNN. How many babies would be alive today if they were indeed not subjected to “quality” screenings?

But even if IVF babies aren’t discarded, they still aren’t out of the woods. Many are considered “surplus” or “leftovers” and cryogenically frozen. According to Southern Methodist University professor Seema Mohapatra, who specializes in assisted reproduction, “There’s always extra embryos … You don’t know if it’s going to take on the first cycle.”

We currently have more than 1 million frozen embryos in this country because the practice is so widespread. If embryos are legally considered human beings, clinics may violate the law if they continue discarding or freezing those “extra” and “unwanted” embryos.

‘Selective Reduction’ of Multiple Embryos

Further, pro-life laws could hinder the widespread practice of abortion “selective reduction,” standard in surrogacy contracts. Not only is there concern that clinics could be in violation of state law if they discard chromosomally abnormal embryos, but they will no longer be allowed to “selectively reduce” any “extra” children who may implant. Translation: pre-born IVF children are designer and disposable commodities, both in the lab and in the womb.

This means overturning Roe could finally end the routine discarding, freezing, and terminating of lab-created life.

Why the need to create, store and over-implant so many embryos? Harvard Law professor Mary Ziegler tells you what many fertility clinics won’t: “The chances of a successful IVF cycle aren’t that high, so doctors will often implant multiple embryos to maximize the odds at least one pregnancy comes to term.” The standard operating fertility clinic procedures — including discarding undesirable embryos and quality and quantity control abortions — means that only 7 percent of all lab-created children are born alive.

Lives Lost through Trial and Error

For the lucky embryos who do get a shot at implantation and avoid “selective reduction,” the average live birth rate among women aged 35-37 (using their own eggs) is 42.8 percent. Women aged 38-40 using IVF have a live birth rate of 35.5 percent.

Further, after the first IVF cycle, less than 30 percent of women have a live birth, and there’s a paltry 45 percent success rate after three full cycles of IVF. Two-thirds of patients will be successful after six or more cycles. How many little lives are being lost through this extensive trial and error transfer process?

What happens to embryos that aren’t fortunate enough to be among the 7 percent born alive or their siblings who at least died in their mother’s womb? They are discarded, indefinitely frozen, “donated to research” and experimented on until death, or “donated” to other adults. This industry is no respecter of human life.

Will Abortion Laws Actually Affect IVF?

While the Supreme Court declaring the humanity of the preborn under the U.S. Constitution would be an enormous step toward preserving embryonic life, pro-life legislators do not anticipate IVF being affected solely by the overturning of Roe.

Clarke Forsythe, a senior counsel at Americans United for Life, told me, “Justice Alito’s leaked draft opinion, if it becomes the official opinion of the Supreme Court, specifically limited the scope of the Court’s decision to Roe v. Wade and the ‘abortion right’ which the Court has defined as the right to ‘terminate pregnancy.’ Which means an inter-uterine pregnancy.”

Alito made clear that his opinion is limited to abortion and does not affect other areas of law, Forsythe said. Ex utero, laboratory embryos have not been covered by Roe nor by abortion law, and IVF has not been protected by Roe.

“What has protected IVF and its growth since 1981 has been public opinion, paying clients, and the special interests that want IVF,” according to Forsythe.

“There has not been sufficient regulation of IVF, but virtually no state has sought to prohibit IVF because of its popularity. If there has not been much regulation before Dobbs, I don’t see a lot of regulation coming after Dobbs. But it’s possible that stronger regulations might arise in red states,” he said.

Current State Abortion Bans Would Ban ‘Selective Reduction’

Genevieve Marnon, legislative director of Right to Life of Michigan, says, “First, each state will be different because of different state laws and state constitutions. Second, the leaked draft was very clear that overruling Roe will simply reverse the egregiously wrong decision in Roe, which allowed abortion but is silent on leftover embryos. The leaked draft did not go so far as to declare the unborn child a person under the federal constitution… Therefore, I do not see the overruling of Roe banning the destruction of embryonic life, absent a state law to that effect.” 

Marnon gave the example of Michigan’s state law: “We have a 2008 constitutional provision that expressly grants the right to experiment on leftover embryos from IVF. This constitutional right will not be impacted by removing a federal constitutional right to abortion. And in Michigan, we have a complete ban on abortion, but our constitution would supersede a state statute. In other states, abortion on demand throughout all 9 months will continue unabated. IVF will not be affected in any way whatsoever.”  

The only way IVF would be affected in Michigan, Marnon says, is regarding selective reduction. If Michigan’s complete ban on abortion is allowed to go back into place, then selective reduction would be banned. “Sadly, making, freezing, and destroying embryos will continue unabated,” Marnon added.

Big Fertility’s fear that pro-life laws will wreck their business model is justified, even if these fears are likely overestimated. The industry has long violated children’s right to life, right to their mothers and fathers, and right to be born free — not bought and sold.

Hopefully their panic will be a wake-up call for pro-lifers to finally call out this industry for what it is — a marketplace of children. 

Katie Breckenridge is external affairs liaison and contributing writer for the children’s rights organization Them Before Us and a premier fellow for the public policy organization Society of St. Sebastian. She has a master’s degree in mental health and wellness and is working towards a graduate certificate in trauma-informed practice.

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