The overturning of Roe v. Wade has created great uncertainty for IVF doctors in the United States, according to the American Society for Reproductive Medicine.
Although the Dobbs decision does not affect IVF directly, it returns responsibility for making laws about abortion to the states. Since some states regard human life as beginning at conception, this places the US$8 billion IVF industry in an awkward position. IVF clinics regularly discard “surplus” embryos and hundreds of thousands are in frozen storage. According to the ASRM:
in addition to explicit abortion bans, “fetal personhood” legislation – which confer fetuses and embryos the same legal standing as a human being outside the womb – may become more common in the post-Roe world, exposing routine ART procedures such as IVF, preimplantation genetic testing, and the discarding of unused embryos to legal challenge and providers who practice them to potential liability.
The Supreme Court ruling is causing “a lot of angst in our community, both from professionals and from patients,” Sean Tipton, spokesperson for the ASRM, told Bloomberg.
Anti-abortion activists “are not in the mood to compromise,” Tipton said. “They are looking to slam that door shut as hard as they can and if infertility patients get their fingers stuck in that door, that’s perfectly OK with them.”
But some observers believe that Dobbs will not lead to IVF Armageddon. Writing in the Washington Post, three academics argue that IVF has become so much a part of American life that it will be impossible to ban it. Over 80,000 IVF babies are born every year – an estimated 2% of all births.
Increasingly, state legislatures that pass laws restricting abortion have included explicit exemptions for the fertility industry. Since 2010, states have introduced or passed 83 bills that mention both abortion and IVF. Of these, 45 bills explicitly exempt IVF and assisted reproductive technologies. None of these bills explicitly included IVF — or any reproductive technology — in banning abortion or defining legal personhood as beginning at conception.
Polls suggest that even amongst people who oppose abortion, very few have moral objections to IVF. “Since both red and blue states have carefully avoided limiting infertility treatments, antiabortion laws are not likely to do so either,” they say.