Nina Pasquini ,?? ??? ?? October 14, 2024

Bringing Up Babies

IVF and the pro-life right

In late February, a few weeks after the Alabama Supreme Court ruled that frozen embryos were legally protected children and largely paused in vitro fertilization in the state, senator J. D. Vance appeared on an Ohio NBC affiliate to clarify his stance on IVF. “My view is babies are good, families are good, and I want there to be as much access to fertility treatment as possible,” Vance said. “I think 99 percent of people agree with me, Democrat, Republican, or in the middle.”

It was a curious claim from the “100 percent pro-life” senator, who has said he wants to protect life “from the date of conception.” IVF as typically practiced in the United States is not compatible with a belief that life begins at fertilization. The procedure begins with the retrieval of eggs and sperm from two people, followed by the fertilization of those eggs in a lab dish before the transfer of a resulting embryo into a carrier’s uterus. Estimates range, but doctors say that anywhere between 15 and 40 percent of eggs exposed to sperm turn into mature embryos called blastocysts. From there, fewer than 50 percent of blastocysts result in live birth. Because of these odds, providers usually fertilize many more eggs than patients want children—the average is between seven to sixteen depending on the patient’s age. Some of the resulting embryos are then discarded by clinics, either because they have genetic abnormalities or because patients end up not using them. The IVF process also entails inevitable risk of embryo damage: freezers can fail, and sometimes embryos don’t survive thawing.

Other times, they are dropped on the floor by a hospital patient who enters the cryopreservation unit through an unsecured door, as occurred in the Alabama case, which was brought by three couples whose embryos were destroyed as a result. The Alabama Supreme Court found the hospital liable for wrongful death, ruling that the frozen embryos qualified as children under the 1872 Wrongful Death of a Minor Act. To justify this interpretation, the judges cited the state’s fetal personhood laws, including a constitutional amendment, passed by ballot measure in 2018, that enshrines “the sanctity of unborn life and the rights of unborn children.” They also pointed to over a decade of case law and antiabortion legislation that says life begins at conception, including the Alabama Code, which defines “unborn child” as “an individual organism of the species homo sapiens from fertilization until live birth.”

Though they’d long supported legislation like that cited by the justices, Vance and other pro-life politicians were reluctant to accept this logical end of fetal personhood. IVF in the United States is widely supported and very common: in 2022, it resulted in 91,771 births—2.5 percent of the country’s total that year—and a March CBS/YouGov poll found that 86 percent of Americans support access to the procedure. Given IVF’s popularity, they had to find a way to advocate for its continued availability without appearing to contradict their views on abortion. To do so, they couched their support for IVF in pro-life terms: the treatment, they insisted, was not just compatible with pro-life beliefs, but actively promoted them. Less than two weeks after the ruling, Texas governor Greg Abbott appeared on CNN to defend IVF, saying, “We as a state want to ensure that we promote life, we bring more life into the world, and we empower parents to be able to have more children.” Around the same time, South Carolina representative Nancy Mace took the same approach, introducing a pro-IVF resolution in the House that warned that the Alabama ruling and similar laws would “result in fewer pregnancies and fewer children being born.”

More recently, Vance has returned to this framing during the presidential campaign, as Democrats have attacked him for failing to protect IVF in the past. He voted against the Right to IVF Act in June and in 2017 wrote the introduction to a series of essays about “culture and opportunity” from the Heritage Foundation, including one that criticized IVF and egg freezing for enabling women to delay having children. “Of course we want to make it easier for moms and dads to choose life,” he told Megyn Kelly in July, trying to distance himself from these positions. “I believe babies are a profound moral good.”

Perhaps this rhetoric was to be expected from Republican politicians who didn’t want to sacrifice votes for the sake of moral consistency. But the pro-life defense of IVF extended even to well-meaning liberal circles, where politicians and pundits have pointed out the supposed irony of the Alabama decision. Banning IVF is at odds with the pro-life movement, wrote MSNBC columnist Michael Cohen in February, because IVF provides “the only path for . . . thousands of families to raise children.” Echoing Vance, he argued that “IVF has no business being a political issue,” because it benefits “pro-choice Americans and those who call themselves pro-life.”

The argument that IVF is not political has become widespread in liberals’ defense of the procedure. Speaking in support of the Right to IVF Act in July, Democratic representative Susan Wild of Pennsylvania insisted that “infertility is not a political issue; it’s not red or blue”—the unspoken comparison being to abortion. She also listed types of people who would benefit from the “pro-family” legislation, in addition to couples experiencing infertility: veterans wounded in combat, cancer patients. Nothing was said of queer or single parents, Wild content to mention only those figures who would appeal to conservative sympathies.

Becoming pregnant—through IVF or otherwise—has long been a risky endeavor in states with fetal personhood laws, including Alabama, where abortion is illegal in nearly all circumstances. (According to a report from the Milken Institute, Alabama ranked worst in the country in maternal mortality between 2018 and 2021, with a rate of 64.63 deaths per 100,000 births, nearly double the U.S.’s national rate of 34.09. Black women’s maternal mortality rate in Alabama was 100.7, compared to a nationwide rate of 68.6.) While abortion bans have contributed to the United States’ maternal health care crisis in general, making it more difficult for pregnant women to receive medical treatment for potentially life-threatening conditions, such laws have made IVF pregnancies—which are associated with higher levels of miscarriage and other complications—especially dangerous, providers say.

IVF pregnancies’ heightened risk largely derives from conditions that affect fertility and lead people to seek the treatment in the first place. Women with polycystic ovary syndrome, for example, are three times more likely to miscarry than women without the condition. Endometriosis, another condition that can affect fertility, is also associated with higher rates of miscarriage and ectopic pregnancy. IVF patients in states with abortion bans have had care for these complications denied or needlessly delayed, increasing risk of infection, sepsis, and damage to fertility.

Some patients have had to travel to other states to obtain abortions, making the IVF process—already expensive, time-consuming, and emotionally taxing—even more so. Early into pregnancy, some IVF patients discover the fetus has genetic abnormalities or congenital anomalies that come with very low chances of live birth or long-term survival and make pregnancy and labor dangerous. In Louisiana, such cases often don’t qualify as exceptions to the state’s near-total abortion ban, says Nicole Ulrich, an ob-gyn and reproductive endocrinologist at Audubon Fertility in New Orleans; patients must then travel out-of-state, bearing the full cost of travel and treatment, which is often not covered by insurance. “It’s difficult from my perspective as a physician to say: I know you want to be pregnant so badly, and I know you need this procedure,” Ulrich says. “But I can’t help you here. I don’t have a colleague I can refer you to, you know, down the road. You’re going to have to figure this out on your own.”

IVF patients have also struggled to receive prescribed medications in states with abortion bans, says Julian Escobar, a reproductive endocrinologist at the Conceive Fertility Center in Dallas. To end an ectopic pregnancy, physicians often prescribe the drug methotrexate, which can also be used for elective abortion and for treatment of inflammatory diseases like arthritis. After Texas enacted its abortion ban, some pharmacists refused to fill his patients’ methotrexate prescriptions and “started almost profiling,” Escobar says, providing the drug freely to men but denying it to patients they thought were seeking abortions—often patients who were young, female, black. Pharmacies also refused to fill patients’ prescriptions for misoprostol, a drug that can be used to help pass miscarriages as well as for elective abortion.

Despite the importance of abortion access to safe IVF, some advocates have sought to frame the two issues as distinct and unrelated. This was the approach taken by the hospital in the Alabama case, which conceded the notion of fetal personhood in its arguments: “All parties to these cases, like all members of this court, agree that an unborn child is a genetically unique human being whose life begins at fertilization and ends at death,” Jay Mitchell wrote in the majority opinion. “That is true . . . regardless of viability.” Rather than challenge the idea that an embryo is a person, the defense argued it was the location of the embryos that mattered: that “an unborn child ceases to qualify as a ‘child’ or ‘person’ if that child is not contained within a biological womb,” as Mitchell summarized. The defense did not provide a compelling reason for why an embryo’s personhood status depends on its location—because if life begins at fertilization, there is none that makes sense.

To be fair, the defense faced an impossible task: they were arguing in front of staunchly pro-life justices in a state where fetal personhood is deeply embedded into case law. They turned to the alternative, conceding fetal personhood while trying to make an exception for IVF. An embryo may be a legally protected person when a person is seeking an abortion, this exception approach implicitly suggests, but that same cluster of cells is not a person when discarded as part of the IVF process.

Unsurprisingly, this logic failed to convince the Alabama justices, perhaps because of its ideological inconsistency and naked instrumentalism. For liberals, it’s clearly a last-ditch effort to save fertility treatment that gives up on fighting for abortion. For conservatives, it contradicts the logic that underlies abortion bans, stripping pro-life philosophy of its moral veneer and reducing it to sheer natalism. It also misunderstands the aims of the conservative Christian groups that have steered the decades-long campaign to ban abortion and now seek to restrict IVF access, which are driven by a sincere belief in the personhood status of a fetus. Population growth is an incidental benefit; states with abortion bans dominate the bottom of maternal and infant mortality ranking lists.

Despite its inconsistency, state lawmakers once again tried the exception approach to protect IVF in the wake of the ruling. In February, a handful of Democratic state representatives in Alabama proposed an amendment that would alter the state’s fetal personhood amendment: “For the purpose of this section, an extrauterine embryo is not an ‘unborn life’ or ‘unborn child.’” Soon after, Missouri state representative Bill Allen—a Republican in a state with a near-total abortion ban—proposed a law that would clarify that “nothing in the laws of this state shall be construed to prohibit any activity associated with in vitro fertilization procedures.” Both bills were stymied by Republican lawmakers who seemed unwilling to accept the implications of a law that said or suggested an embryo is not a child. 

Facing increasing scrutiny, Alabama lawmakers turned to a different approach: blunt force. In early March, they passed a stopgap bill that grants “civil and criminal immunity for death or damage to an embryo” during the IVF process. The bill does not address whether an embryo is a person but protects medical providers from liability if embryos are destroyed or damaged during IVF treatment or embryo storage. Explaining why the bill doesn’t address embryonic personhood, Republican state senator Tim Melson said at the time, “There’s just too much difference of opinion on when actual life begins”—conception, implantation, or a heartbeat. The stopgap bill, lawmakers claimed, would give them time to work that question out.

These comments make lawmakers seem unaware that Alabama case law has now effectively defined life as beginning at conception, and that Alabama’s total abortion ban—as opposed to a six-week or heartbeat ban—suggests the same understanding of when life begins. More likely than ignorance is a strategy of delay: the stopgap bill temporarily quelled voter furor without conceding fetal personhood. In the meantime, lawmakers seem to want to gradually restrict access while telling voters they’re not. “Senate Democrats have embraced a summer of Scare Tactics . . . [IVF] is legal and available in every state across our nation,” Ted Cruz and Katie Britt said in a June statement typical of the GOP approach, meant, as happened with abortion, to wear down resistance and shift the boundaries of what voters consider acceptable.

There is a version of IVF that might fit within those shifted boundaries. To remain consistent with fetal personhood, lawmakers don’t have to completely ban the procedure. Instead, they can mandate that embryos be treated as children with a right to life by requiring a carrier to try to gestate each created embryo to term. Some on the right have begun to gesture toward this possibility. “I would not have my three amazing children had it not been for IVF,” Megyn Kelly said on her show after the Alabama ruling, in a seeming show of empathy. But she had an important “footnote”: “We were lucky in that we did not produce extra embryos . . .  If it had been one or two more, I probably would have tried to have them. But if it had been ten more, what do you do in that circumstance?” Kelly doesn’t answer that question, but simply repeats that “I do consider myself fortunate not to have had that end result.”

In June, the Southern Baptist Church also framed its position on IVF in these terms, opposing IVF not in general but as “routinely practiced,” with the creation and destruction of surplus embryos. The SBC also denounced preimplantation genetic testing of embryos—which can be used to select for traits like sex and eye color, but also to detect genetic abnormalities incompatible with live birth or long-term survival—as “dehumanizing” and “based on notions of genetic fitness and parental preferences.”

Republican politicians have been more circumspect and avoided speaking about potential restrictions on IVF, likely wary of alienating voters on either side of the issue. But their legislation suggests they envision a future where IVF is governed by the logic of fetal personhood. In September, senators Ted Cruz and Katie Britt introduced the IVF Protection Act, which would prevent states from receiving Medicaid if they banned IVF—assuming, contrary to evidence, that state lawmakers would prioritize their poorest constituents’ health over the protection of embryos. The bill would also allow states to ban genetic testing, limit the number of embryos created, and forbid embryo destruction. Cruz, Britt, and other Republicans who supported this bill have repeatedly voted down Democratic legislation that would prevent such restrictions.

There is no need to imagine what IVF practiced under these constraints would look like: pro-life groups and conservative think tanks, including the Heritage Foundation, have already floated policy recommendations for restricting IVF. They usually suggest a version of rules currently enforced in Germany and implemented in Italy from 2004 to 2009: create only the number of embryos the clinic intends to transfer and ban preimplantation genetic testing. In Germany, and previously in Italy, this means creating three embryos at a time and implanting all at once, making dangerous twin and triplet pregnancies more likely. But in those countries, if multiple embryos implant, patients have the option to terminate the second and third—obviously unacceptable to American pro-life advocates.

To avoid multiple pregnancies, then, many American pro-lifers have recommended creating one embryo at a time. This requires freezing all but one of the eggs from an egg retrieval, trying to fertilize that single egg, then thawing and trying to fertilize one more at a time if the first attempt is unsuccessful. (Recall that only 15 to 40 percent of eggs exposed to sperm become mature embryos.) After that, there remains the possibility that the embryo fails to implant or results in miscarriage, which requires starting this process over. This would dramatically increase the cost and reduce the success rate of IVF, providers say.

And banning preimplantation genetic testing (PGT) makes it impossible to detect conditions that make miscarriages and implantation failure more likely. In non-IVF circumstances, an estimated 40 to 60 percent of fertilized eggs do not result in live birth: the embryos either fail to implant or result in miscarriage or stillbirth, often because of genetic abnormalities. Such abnormalities are not uncommon. In one study of IVF patients with a history of pregnancy loss, about half of embryos from women under forty had an extra or missing chromosome; that rate increased to 57 percent for women over forty. PGT enables clinics to detect those abnormal embryos before the patient spends thousands of dollars—and risks her health—to try to carry the pregnancy. Without access to such testing, the pregnancy becomes a dangerous, extremely expensive experiment on embryo viability. The entire process of carrying a non-viable embryo—from fertilization to miscarriage—can cost as much as $50,000 for treatment and medication, says Serena Chen, a reproductive endocrinologist and advocacy director at CCRM Fertility in New Jersey.

After these rules were enacted in Italy, fertility rates for older patients dropped from 28 to 13 percent and many of those who could afford to do so traveled abroad to pursue IVF. Even in Catholic Italy, the restrictions were seemingly untenable: the country’s constitutional court reversed most of these rules in 2009, and in 2012, the European Court of Human Rights found the complete ban on genetic testing violated the European Convention on Human Rights. Italy now permits such testing to detect genetic abnormalities. Germany continues to ban genetic testing with few exceptions, like if the parents have predisposition to serious genetic disease—partly a response to the country’s history of eugenics. But patients there have the option to test for fetal anomalies after implantation and then to receive abortions. Experts have criticized these rules for forcing patients to begin pregnancies just to terminate them, and even in 2004 a study found that 80 percent of the population believed PGT should be legal.

In the United States, such rules would exacerbate existing inequities. This can already be seen in Louisiana, where the destruction of embryos has been illegal since 1986 because of advocacy by religious groups. Under this ban, most clinics ship embryos to other states for long-term storage, increasing the cost of the procedure. Partly as a result, IVF is much less accessible in Louisiana than in the rest of the country: fewer than ten fertility doctors practice in the state, says provider Nicole Ulrich, and IVF accounts for 1 percent of live births, half the nationwide rate of around 2 percent. Those doctors’ services are largely concentrated among the wealthy and white: while the population of New Orleans is 57 percent black, “the percentage of our patients who have done IVF with us who are black . . . is very low, relative to that statistic,” Ulrich says.

This inequity persists even in states with better policy. A survey conducted in 2019 of 1,460 patients at a fertility center in Illinois—where insurance is required to cover fertility treatment—found that 81.1 percent of patients had an income above $100,000. There were also racial disparities: 75.5 percent of patients were white, compared to 61.6 percent of the state population. Ethical IVF advocacy would seek to reduce these disparities; IVF practiced under the constraints of fetal personhood would exacerbate them.

Eighty-six percent of Americans believe IVF should be protected—far more than the 63 percent who believe abortion should be legal in all or most circumstances. In the best case, the pro-life movement’s mission to restrict IVF will force pro-IVF, anti-abortion Americans—including some of the 59 percent of Alabamans who voted for the state’s right to life amendment—to reconsider long-held positions about bodily autonomy and the state’s role in enforcing personal beliefs about the moral status of embryos and fetuses. That won’t happen, however, if advocates continue to accept conservatives’ framing that IVF is bipartisan, apolitical, pro-life. This rhetoric advocates for the wealthy who make up the majority of people who use fertility services while sacrificing the rights of working-class women and women of color who disproportionately access abortion. Such an approach will make the IVF process harder for those who are already most vulnerable.

But the pro-life defense won’t just fail to protect IVF; it will also reinforce the beliefs underlying conservative rhetoric about the procedure. The insistence that IVF is “pro-family” because it promotes childbirth, for example, uses tropes from the right-wing natalist movement recently spearheaded by Vance that seeks to increase the birth rate among native-born Americans while restricting immigration. Donald Trump has reached for this logic as the easiest way to justify his support for IVF. In response to the Alabama ruling, he said at a February rally: “Like . . . the vast majority of Republican conservatives, Christians, and pro-life Americans, I strongly support the availability of IVF for couples who are trying to have a precious little beautiful baby.” In August, on NBC, he explained his rationale for a policy that would require insurance coverage and provide government funding for IVF: “We’re doing this because we just think it’s great, and we need great children, beautiful children in our country.” Given the natalist fixation on creating the right kind of children, it is not hard to guess whose precious, beautiful, and great babies he is talking about.

Labeling IVF “pro-family” also often privileges the conservative definition of that term—the heterosexual nuclear family—and thereby opens the door to restrictions on who can access the procedure. In some countries, including Italy and the Czech Republic, IVF is generally restricted to heterosexual couples. While IVF is legally accessible to anyone who can pay for it in the United States, only eight states and the District of Columbia have laws requiring insurers to provide fertility treatment for same-sex couples, compared to twenty-one that require some coverage for infertile heterosexual couples. Centering those deemed worthy of IVF by conservative standards sets a precedent for restricting access or insurance mandates to those groups.

Perhaps the most foolish assumption of the pro-life defense of IVF, however, is that overwhelming public support for IVF will remain stable—that years of conservative rhetoric around fetal personhood and the importance of traditional family structures won’t shift public opinion. The pro-life movement doesn’t believe that. “I have been at this a very long time. And I can remember when it seemed that gaining any kind of pro-life consensus in this country by educating Americans—and I’ll even say just American evangelical Christians—on the issue of abortion seemed an impossible task,” R. Albert Mohler Jr., president of the Southern Baptist Theological Seminary, said to the New York Timesin September.

It took half a century of hard-fought progress—but that consensus was eventually achieved, he went on. “I don’t know how long it’s going to take on IVF. But I just want to let you know that I’m not intimidated by being told we’re way behind in this game. We started out way behind in this game. And so I’m going to keep gaining every yard I can on this issue.” Those on the other side would be wise not to yield an inch.