A fertility treatment that has been used for 45 years is once again available in Alabama. In vitro fertilization (IVF) procedures in the state were halted after the Alabama Supreme Court ruled in February that embryos created using the technique have the same rights as children. A new state law protecting clinics from legal fallout has allowed IVF treatments to resume — but clinicians and scientists in the United States who are working with human embryos are not totally reassured and fear that they will face an increasing number of legal and constitutional challenges.
Physicians are especially worried that officials might cap the number of embryos that can be created in each treatment cycle, which often entails the fertilization of several eggs. Lawmakers could also ban the freezing of backup embryos, which doctors say would result in less efficient and more expensive treatments.
The fact that IVF is so popular in the United States could protect the practice to some extent, says Hank Greely, director of the Center for Law and the Biosciences at Stanford University in California. But research using human embryos — which is already restricted or even banned in some states — might be an easier target for anti-abortion advocates, some of whom contend that life begins at conception and that discarding an embryo is akin to killing a child. “From a researcher’s perspective, there’s reason to be worried,” he says.
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‘Wrongful death’
Concerns about restrictions on the handling of embryos began to escalate in 2022, when the US Supreme Court reversed Roe v. Wade. That reversal stripped away the right to an abortion in the country.
But IVF seemed to remain protected, says Eli Adashi, a reproductive endocrinologist at Brown University in Providence, Rhode Island. “Because in so many ways you could look at IVF as a pro-life proposition, IVF was by and large left alone,” he says.
That changed after three couples in Alabama filed a lawsuit against a fertility clinic for the accidental destruction of their frozen embryos. The suit claimed that the loss violated the 1872 Wrongful Death of a Minor Act, a state law that allows family members to sue when their child dies owing to negligence.
The Alabama Supreme Court ruled on 16 February that the act covers “all unborn children”, including embryos outside the uterus. The decision meant that the lawsuit was valid — and that clinics and doctors could be liable for the destruction of embryos created by fertility procedures. Clinics suspended IVF treatments, and the resulting backlash prompted lawmakers to quickly pass legislation on 6 March to provide immunity to providers and patients for the destruction of embryos.
Several states, including Alabama, have laws conferring rights to embryos. Because there is no federal law protecting IVF, state laws could potentially be targeted at the technique, which often involves discarding embryos, such as those with genetic abnormalities.
Complicated politics
The Alabama ruling was a warning shot, Greely contends. It signalled that some anti-abortion forces are now interested in protecting embryos outside the womb. If “you’ve just won this great victory in overturning Roe v. Wade, you’re going to be looking for what’s next”, he says.
Mary Szoch, the director of the Center for Human Dignity at the Family Research Council, an anti-abortion organization in Washington DC, didn’t directly answer a written question from Nature about whether anti-abortion organizations are pushing for restrictions on IVF in the United States. The council recognizes the value of the lives of children born as a result of the procedure, she says. However, “millions more lives have been lost as the result of human life being made in the laboratory”, she adds. “Society must stop viewing these embryos as mere products.”
It’s not clear how far anti-abortion groups will go to campaign to restrict IVF. These groups have consistently opposed the destruction of embryos for any reason, says Jennifer Holland, a historian at the University of Oklahoma in Norman. But they have been cautious about advocating against IVF because of concerns about whether “this erodes the kind of political support that they’ve gotten from the Republican Party”, Holland says. Many Republican leaders have openly supported IVF.
Eroding efficiency
Even if IVF is not banned, clinicians worry about the prospect of restrictions on disposal of embryos. Other countries have imposed such constraints: a law in Italy, for example, mandated that only three embryos could be produced per round of IVF, and required all embryos to be transferred “as soon as possible”. “It was very inefficient, and they finally overturned that,” says Eric Forman, a reproductive endocrinologist at Columbia University in New York City.
If embryo freezing is considered legally risky, “couples will limit the number of eggs retrieved or inseminated [per treatment cycle] to avoid any frozen embryos”, says Nanette Santoro, chair of obstetrics and gynecology at the University of Colorado in Aurora. That would make each round of IVF much less efficient, she notes, which could raise the number of cycles couples undergo, drive up costs and increase exposure to risks from the procedure and fertility drugs.
Forman is also concerned with potential restrictions on genetic testing of embryos, which helps providers to select embryos that are more likely to result in a viable pregnancy and avoid certain genetic conditions. “I worry that [would] result in fewer healthy babies from this technology,” he says.
Fears of restrictions
The study of human embryos is already heavily restricted in the United States. Since 1996, federal funding for research involving the creation or destruction of human embryos has been barred. In 11 states, human embryo research is banned. For scientists, the Alabama ruling sounded an alarm about the prospect of increased constraints.
“I’m concerned, obviously, about what the consequences of this decision are going to be,” says Ali Brivanlou, an embryologist at The Rockefeller University in New York City who conducts research involving human embryonic stem cells.
He says that he understands why people might find it easier to support IVF than human embryo research. With IVF, “you're trying to help couples to have kids who otherwise would not have kids, so it's easier to accept why this technology is important,” he says. That doesn’t take into consideration, however, “the fact that IVF could not exist without basic research and that most other aspects of medical practice are derived from the basic research approach”.
This article is reproduced with permission and was first published on April 2, 2024.