July 5, 2022

Will post-Roe legislation protect embryos left over from the process of in vitro fertilization?

I'm reading "Infertility Patients and Doctors Fear Abortion Bans Could Restrict I.V.F./The new state bans don’t explicitly cover embryos created outside the womb, but legal experts say overturning Roe could make it easier to place controls on genetic testing, storage and disposal of them" (NYT).
[M]any fear that regulations on unwanted pregnancies could, unintentionally or not, also control people who long for a pregnancy.... So far, the texts of the laws taking effect do not explicitly target embryos created in a lab.... By using the word “pregnancy,” most trigger bans distinguish their target from an embryo stored in a clinic....

Some medical and legal experts have proposed... creating one embryo at a time by storing sperm and eggs separately and thawing them only to create individual embryos as needed... 
[Another option] is called “compassionate transfer.” A 2020 position paper by the American Society for Reproductive Medicine says the term refers to a request by a patient to transfer embryos in her body “at a time when pregnancy is highly unlikely to occur, and when pregnancy is not the intended outcome.” For people who see the frozen embryo as human life, a compassionate transfer is a kind of natural death for the embryo, rather than having it destroyed in a lab. 
Katherine Kraschel, an expert on reproductive health law at Yale Law School, noted that clinics could be forced to store embryos that embryologists have determined are unlikely to result in a pregnancy. “It could also mean that ‘compassionate transfer’ is recommended not to honor a patient’s moral valuation of their embryos but because the state has imposed its moral valuation upon them,” she said. 

Another concern is that special consideration for the women who create participate in I.V.F. can — and therefore will — be portrayed as racist:

Judith Daar, dean at the Salmon P. Chase College of Law at Northern Kentucky University and an expert in reproductive health law, said that passing a state law that would distinguish infertility patients from those seeking an abortion risked having a discriminatory impact, “given that the majority of I.V.F. patients are white, while women of color account for the majority of all abortions performed in the U.S.”

54 comments:

Anthony said...

"Experts".

RideSpaceMountain said...

Rich wall-adjacent white women having trouble getting pregnant seek IVF treatment, already pregnant black women seeking abortion hardest-hit.

Narayanan said...

why legislated law?
instead of agreed contract between parties with contingencies figured out?

Gusty Winds said...

This week, in a call with employees, Zuckerberg said the company would slow hiring as it tries to cope with what he called the "worst downturns that we've seen in recent history."

If you read Twitter comments, every lib is out there defending Biden saying inflation isn't his fault, gov't spending doesn't cause inflation, we not heading into a recession. You can probably find the same denial in the finance and economics departments at the University of Wisconsin.

Now you have old Zuckerbucks here, who helped install this administration openly stating "worst downturns we've seen....".

Jupiter said...

"a request by a patient to transfer embryos in her body “at a time when pregnancy is highly unlikely to occur, and when pregnancy is not the intended outcome.”

??? Do I read this right? This is essentially a (no doubt very expensive) medical procedure intended to accomplish nothing?

Gusty Winds said...

“There are a lot of you here who really don’t do shit or produce anything of real value and are frankly overpaid. Now that you’ll be required to do that, with some level of accountability, this might not be the place for you. You might want to find an administrative position at the University of Wisconsin.”

tim maguire said...

It's not surprising that after 50 years of court-enforced carelessness about the status and treatment of embryos, industries around the periphery of abortion have put themselves in a position of having to rethink their procedures now that restrictions on abortion are possible.

Though the reality is, there is no problem posed. If the embryos exist in a state that has sufficiently tight restrictions on abortion such that they are concerned with their ability to dispose of unwanted embryos, they can simply FedEx the embryos to a state that does not. There. Fake problem fixed.

Inga said...

Overturning RoevWade, not one of the Conservative Justices seemed to consider the ramifications of what they’ve done, in society in general and in people’s private lives.

Gusty Winds said...

The a great Twitter exchange was Elon Musk’s announcement that managerial Tesla employees were once again required to put in at least 40hrs per week on-site, and COVID work from home privileges were over.

One lib commenter wrote, “what if working at an office is now an outdated practice”

Musks response was, “They can pretend to work somewhere else”.

It was about a week later he announced Tesla would be cutting 10% of its workforce.

Achilles said...

There is a reason why millions of people die whenever intellectuals take over the government of a society.

Achilles said...

Inga said...

Overturning RoevWade, not one of the Conservative Justices seemed to consider the ramifications of what they’ve done, in society in general and in people’s private lives.

But the 9 justices that pulled Roe out of the abyss penumbras and made a 1 size rule to fit everyone in the country in every situation did.

50 state legislatures will do a better job of dealing with this than those 9 robed priests did.

Inga probably thought this was a deep and penetrating observation when she posted it.

Daniel12 said...

"If the embryos exist in a state that has sufficiently tight restrictions on abortion such that they are concerned with their ability to dispose of unwanted embryos, they can simply FedEx the embryos to a state that does not. There. Fake problem fixed."

Oh so your resolution of the problem for states that have banned abortion requires there being other states that have legal abortion? Hmmm...

Inga says:
"not one of the Conservative Justices seemed to consider the ramifications of what they’ve done"

I think they, and the lawyers, clergy, activists, etc. that have been behind them and made sure they were nominated, have been considering (and often welcoming) the ramifications for decades. They just didn't count for much, and they don't know. Look at Kristi Noem ignoring the question about the ten year old pregnant girl -- not a hypothetical, not a liberal plot, but a real event. Or the women who need chemo to treat cancer but can't abort their pregnancies. Or, or, or... and it's only been a couple weeks.

Let's see if there's a pivot by the anti-abortion movement to a humane and supportive society without the right to abortion. All I've seen so far is a pivot from ending Roe to banning abortion outright.

Maynard said...

I wonder how long the Dobbs decision hysteria will continue.

Maybe until we have no stupid people or Clarence Thomas votes to make interracial marriages illegal, eh Inga?

mccullough said...

How is People of Color an improvement on Colored People?

Is the NAACP going to change to the NAAPC?

Roe and Casey led to fewer Colored Births in the US compared to Non-Colored People.

The Disparate Impact of Roe and Casey has been overwhelming.

Perhaps Progressives should ditch Disparate Impact all together instead of just ignoring it when their other values trump it.

tim maguire said...

Inga said...Overturning RoevWade, not one of the Conservative Justices seemed to consider the ramifications of what they’ve done, in society in general and in people’s private lives.

That is just about the weakest, most half-assed justification I can imagine for leaving a bad ruling in place--someone who got into a lazy habit of doing things they shouldn't have been doing simply because it's a bit easier might be inconvenienced by a rule change.

Charlie said...

I've always wondered where the line is between "some fear" and "many fear"? Some experts believe... Many are worried... You never read "The two experts who answered my emails fear..."

who-knew said...

Just more evidence that treating children as a luxury good rather than human beings is wrong. And make no mistake about it, IVF is treating children like a luxury good. It results directly from demanding that you get to have something that isn't happening naturally. I have nothing but sympathy for people who want children but can't conceive, I just don't think IVF is ethical (and 'leftover' embryos are one of the reasons to feel that way.

Kate said...

Isn't the IVF practice to insert multiple embryos to guarantee success? Yes. That's why so many IVF patients have twins. Actually, though, they can have more than twins attaching and growing. So... the unwanted extras are removed and the viable wanted are left to grow.

Right? What will they do now? Unless they've got some fancy medical word, that's abortion.

Leland said...

Shortly after learning that no laws consider a miscarriage to be an abortion; now the left wants to claim embryos outside the womb could be abortions. The majority of Americans are willing to negotiate a reasonable term for abortion on demand. The Mississippi law seems a bit harsh at 15 weeks, but not as harsh as others. Perhaps start there? But no, we need to pretend IVF could now be abortion. Who is that supposed to sway?

Michael K said...

There was an amusing scandal at UC,Irvine a few years ago. IVF often produces abandoned blastocysts that will not be implanted. Patients were complaining about paying to keep them frozen. Two of the guys that ran the IVF program at UCI decided to use them for couples that had failed IVF. They didn't bother to tell the patients that these were not their own children. A lab tech finally ratted them out and hell fire resulted. The two guys running the clinic left for south America where they had come from. A friend of mine in the OB GYN department who nothing to do with IVF got prosecuted on some ginned up charge by the Feds. The U which had recruited the two south American guys at great expense wound up holding the bag. It was finally decided to "donate" those embryos to other couple whose IVF had failed but to tell them the truth.

Another aspect of this, that I doubt Inga has heard of, is selectively aborting some of the embryos to limit the number that survive. One goofy doc in LA allowed 8 embryos to survive and "Octomom" appeared. She was on welfare and he lost his license.

Mikey NTH said...

State legislators are going to be busy soon. Oh well, they volunteered for this duty.

Greg The Class Traitor said...

"Could" is such a wonderful word

Tomorrow SCOTUS COULD do all sorts of things

So COULD Congress, the President, State Legislators, and State governors

That's kind of the point of democracy, federalism, enumerated powers, and all the rest of it

Do you care about IVF? Contact your State Legislators and tell them your thoughts. Heck, volunteer to help them consider the issues.

What we're seeing here is just how much the NYT, and the Left in general, hate actual democracy and lawmaking.

What they want is a dictatorship where they are in charge. What their pin heads can't imagine is that when they work to create a dictatorship, they work to make one the other side can control

But what they really, absolutely, totally hate is democracy and representative government

Ambrose said...

“Many fear” is hardly grounds for action.

Greg The Class Traitor said...

Inga said...
Overturning RoevWade, not one of the Conservative Justices seemed to consider the ramifications of what they’ve done, in society in general and in people’s private lives.

That's because that's not their job

Their job is to enforce the written US Constitution. Their job is NOT to act as "philosopher God kings" and decide for all of us exactly what our lives should be

But I think you for so clearly demonstrating your complete inability to understand

n.n said...

No. Yes.

Civilized society has compelling cause to discourage human rites performed for social, redistributive, clinical, and fair weather causes.

n.n said...

Compassionate transfer? Adoption?

Richard Dolan said...

More wonderful hypos -- old lawprof habits die hard. As it happens, you don't have to wait for the post-Roe world on this one. This issue has come up in divorce cases. Some states will enforce an agreement dictating what happens in a divorce/separation, and most in vitro facilities require the parties to sign an agreement before providing the in vitro service. Other states, Arizona in 2019, have passed laws refusing to enforce any agreement between the parties on the subject as a matter of public policy, and providing that whichever party intends to develop the frozen embryos to birth gets custody of them in the event of a divorce.

So expect a patchwork -- that's what federalism typically delivers.

Mark said...

It is amazing how many hair fires have broken out over the end of Roe.

Mark said...

Meanwhile, the problem of "leftover" frozen embryos has been a consideration of bioethics for decades.

What's emanating from your penumbra said...

"Strongest supporters of state authority question whether regulation is appropriate."

Lucien said...

What did Roe/Casey have to do with frozen embryos or IVF?

JMR said...

Inga said...
Overturning RoevWade, not one of the Conservative Justices seemed to consider the ramifications of what they’ve done, in society in general and in people’s private lives.

How terrible, women lose the laziest method of birth control for wanton and careless rawdogging. Please, protect me from my carelessness!

Fuck right off.

rhhardin said...

What about embryos left over from IUDs. That seems to be the obvious proof that conception is not a baby.

Ann Althouse said...

“ What did Roe/Casey have to do with frozen embryos or IVF?”

It cleared the way for new statutes that might end up including the destruction of embryos that are the byproduct of IVF. More embryos are made than are implanted. Unless they are kept frozen forever, they are killed.

Bender said...

It is disturbing that some so blithely bemoan that eight people are alive today rather than most of them being dead.

Birches said...

More embryos are made than are implanted

Only because doctors like it that way. I know of a few couples who thought of their IVF from a prolife perspective. They only implanted as many embryos as they were willing to carry to term and implanted all of their embryos eventually. Hearts will change as people begin to see pregnancy differently.

Jupiter said...

Overturning RoevWade, not one of the Conservative Justices seemed to consider the ramifications of what they’ve done, in society in general and in people’s private lives."

Igna, there are people whose job is to consider those ramifications. They are known as "legislators". For 50 years, they have been prevented from doing so by an irresponsible and baseless ruling promulgated by an activist Court. The conservative justices have reversed that ruling, and it will now be up to the legislators to determine what, if anything, should be done about the matter.

It is interesting that you seem to share the view of the dissenting justices, that they are legislators, and that their job is to make up good laws.

Michael K said...

I think the IVF practice of aborting some embryos will survive the 15 weeks rule.

Joe Bar said...

Wow. I await the prognostications on the effects on surrogacy.

Laurie said...

In reply to Althouse's comment, that last sentence is not true. It's also possible to donate embryos to couples unable to create their own for whatever reason. Frozen or destroyed are not the only two choices for embryos not implanted to biological parents.

Nancy Reyes said...

this might bring publicity to the dirty little secret of IVF: unwanted embryos sitting in storage. Most will die a natural death in storage of course.
What do mothers think of these embryos? Court cases suggest they are more than discardable tissue.
Ironically, Catholics traditionally opposed IVF for several reasons, mainly because it is anti nature/anti sex. But they also have long warned about seeing the embryo as a commodity to be bought and sold (as we see in surrogate pregnancies that buy an embryo from one woman and then have a poor lady in a third world country carry it for the affluent donors).
And another dirty little secret: IVF is often pushed by doctors for infertile couples who are older instead of waiting to see if less intrusive and cheaper ways to get pregnant will work. It is a money making racket that promises pregnancy, even though the failure rate is high.

Bender said...

Killing (aborting) intentionally created and intentionally implanted perfectly healthy babies certainly puts the lie to Roe and the claim of bodily autonomy.

n.n said...

I think the IVF practice of aborting some embryos will survive the 15 weeks rule.

Six weeks, to baby meets granny, viability, too. The ex utero embryos are comparable to nonviable conception or Her Choice. Infertile couples, women who have delayed conception increasing risk to mother and child, et al should consider adoption.

n.n said...

Edge cases do not make the rule, or perhaps they do in the wake of social progress. As for Roe's regrets, Ruth's remorse, the Twilight Amendment, along with diverse acts of mischief, has been discarded, and the Pro-Choice ethical religion is on notice for sponsorship of the wicked solution et al.

Mason G said...

"More embryos are made than are implanted. Unless they are kept frozen forever, they are killed."

"Killed"? So- until then, they're alive?

Lucien said...

Ann: It cleared the way? Whiskey Tango Foxtrot: I thought these cases were about women’s personal autonomy, “reproductive health”, and Anthony Kennedy’s musings on dignity and defining the universe the way you want to, or something.
If some state wanted to ban defrosting embryos, or (less likely) implanting them in women who wanted babies, what was to stop them.
Assuming, for argument’s sake, that the “way clearing” proposition holds water, Dobbs isn’t “way blocking “, is it?

cubanbob said...

Nothing but strawman arguments from the Left. Daniel12 states a pregnant woman who has cancer won't be able to get chemotherapy because it will result in a miscarriage. Sure, the woman has a duty to die for her child. Actually, no. No one is obligated to die for someone else. Inga with the usual nonsense that the Supreme Court is a House Of Lords. No, it is not. It's just a court, not a legislature. A frozen embryo isn't a fetus since it isn't implanted in the mother's womb. Unless its unfrozen and implanted in a woman's womb it has no pathway to ever develop into a child. This matter will be solved at the state level soon enough.

Achilles said...

Daniel12 said...

Let's see if there's a pivot by the anti-abortion movement to a humane and supportive society without the right to abortion. All I've seen so far is a pivot from ending Roe to banning abortion outright.

The Mississippi law that the court upheld banned abortion after 15 weeks.

The only reason that "All I've seen so far is a pivot from ending Roe to banning abortion outright" is because you are reacting to your own imagination rather than reality.

But leftists like you still believe in Russian Collusion and J6 insurrections.

Reality is just not a place where leftists can live. That is why they have to resort to censorship.

Achilles said...

Ann Althouse said...

“ What did Roe/Casey have to do with frozen embryos or IVF?”

It cleared the way for new statutes that might end up including the destruction of embryos that are the byproduct of IVF. More embryos are made than are implanted. Unless they are kept frozen forever, they are killed.

So do you object to people just making embryos and killing them for the fun of it?

I don't think there should be a Law Against it.

I also don't think there should have to be a law against it.

Greg The Class Traitor said...

Charlie said...
I've always wondered where the line is between "some fear" and "many fear"?

"Some" == 2 (maybe 1 if the reporter is really invested in the story line)
"Many" == 3+

Freder Frederson said...

The Mississippi law that the court upheld banned abortion after 15 weeks.

Mississippi also has a trigger law, passed in 2007, that bans almost all abortions (the only exception is rape reported to law enforcement). That is what they are arguing about now. The 15 week ban is old news.

Tina Trent said...

And then there are "snowflake babies," fertilized embryos provided with the parents' permission to mostly evangelical couples who volunteer to birth and raise them as their own, rather than leaving them in limbo.

Drago said...

Field Marshall Freder: "Mississippi also has a trigger law, passed in 2007, that bans almost all abortions (the only exception is rape reported to law enforcement). That is what they are arguing about now. The 15 week ban is old news."

LOL

No, the Dobbs decision is not "old news" at all. It us very new news and very much at the center of the conversation: hence the illegal protests outside SC Justices homes.

But its understandable why you would want to change the subject away from Dobbs after the many lefty lies about Dobbs are being blown up day after day.

Any trigger laws that may ir may not exist in each state has zero to do with the fundamental and sound legal/constitutional basis for the majority in the Dobbs decision.

Field Marshall Freder is attempting the Fraudulent Hillary Dossier 2-Step technique whereby the thing the lefties scream about non-stop for years is suddenly irrelevant or not a big deal and never was (!) after its blown out of the water.

Freder Frederson said...

No, the Dobbs decision is not "old news" at all. It us very new news and very much at the center of the conversation: hence the illegal protests outside SC Justices homes.

That is not what I said at all. The law that was at issue is the old news. Dobbs was creatively argued to have the Supreme Court review Roe. The MS legislature assumed that banning all abortions would be struck down and would never make it to the Supreme Court (probably a bad assumption on their parts considering how completely the Court struck down Roe), so they passed a 16 week ban knowing full well that if the Supreme Court used it as an opportunity to strike down Roe, the trigger law would take effect.

And who is lying here? Most commenters are trying to convince us that no state is completely banning abortions, and the vast majority will settle on abortion restrictions similar to most European countries (which is a double lie, since European restrictions are not nearly as restrictive as you would like us to believe).