The Fate of Fertility Treatments is in Jeopardy, and I Have Questions

Once upon a time, I was the proud parent of 17 fertilized eggs.

Notice I did not say children.

I have two beautiful, healthy, very-much-wanted children who once numbered among those embryos, but already-born people are not the same as fertilized eggs, zygotes, or embryos. I know from experience.

Several years ago, in the thick of my own infertility procedures, a specialist who was trying to console me said, "human reproduction is a wasteful and inexact process." It's true whether reproduction occurs naturally or with assistance. (This was no consolation, by the way.)

This may look fun, but it isn't.

Multiple grueling rounds of in vitro fertilization (IVF) proved over and over that he was devastatingly correct. I know without a doubt that fertilization does not always equal life. And it concerns me that the Supreme Court doesn't agree. 

Supreme Court Justice Amy Coney Barrett, whose confirmation process was abbreviated to only five weeks, is a devoutly religious woman who believes life begins at fertilization. Her religion, and at least one anti-abortion advertisement she signed her name to in 2006, holds that the start of a human life should be marked when egg joins with sperm and should be respected unconditionally until natural death. The Catholicism to which she adheres forbids advanced fertility treatments, condemning IVF as immoral because children should be "begotten, not made." 

Much of the uproar surrounding her court appointment was about abortion, as Trump vowed only to nominate Supreme Court justices who would strike down Roe vs. Wade. Less talked about but equally important are the rights and privileges of would-be parents trying to create a family through fertility treatments. 

I fear for what will happen to hopeful parents under a conservative Supreme Court, and laws affecting abortion are changed. I'm not the only one with concerns about unintended consequences of dismantling Roe. Senator Tammy Duckworth recently voiced her upset, too. 

Any changes that confer personhood to an embryo would have consequences for assisted reproduction. Almost certainly, statutes affecting fertilized eggs inside a womb will also affect fertilized eggs outside of a womb. An embryo is an embryo, right? Otherwise, hypocrisy reigns supreme, and we learn that the pro-life contingent was never really concerned about the rights of the embryo at all. I'll speak to that later.

In the near future, the fate of fertility treatments may be in jeopardy. Here is my story, and the questions we should *all* consider.

Infertility plagues about 1 in 8 American couples. Chances are, you know someone this will impact.

Egg + sperm =/= life
After two years of trying to get pregnant naturally and with medical help, one testicular cancer diagnosis, one discovery of low egg count, and innumerable breakdowns, my husband and I embarked on IVF treatment.

In spring 2012, doctors carefully extracted a total of 21 microscopic eggs during outpatient surgery. 

These 21 eggs didn’t casually walk up to sperm in a bar and say, “Come ‘round here often?” and see what happens. An embryologist manually injected each ovum with a carefully chosen, healthy-looking sperm via a very tiny needle. They were forced to join together.

In the theory of those who believe in personhood, this means 21 persons were created. 

In actuality, four of the 21 eggs failed to fertilize.

Nineteen percent – almost one-fifth – did not create a human being despite closely held beliefs that fertilization equals conception. Life did not begin for these egg-sperm combinations. In fact, nothing happened at all.

And this was with medical intervention that removed all barriers, such as a sperm not being able to penetrate the egg, or multiple sperm reaching the outer egg proteins at the same time. 

This is scientific proof that the joining of an egg and a sperm does not unequivocally equal life. The vast majority of the time, nobody even knows when or if fertilization happened - it isn't visible and there are no medical tests to validate. It all happens internally, or doesn't. 

A few supplies

The long road (not) traveled

For eggs that fertilize under natural circumstances, three or four days can pass between fertilization and reaching the uterus. During this time the zygote has become a blastocyst, dividing roughly once every 24 hours like that it's job. 

Except for the ones that don't. Because many, many fertilized eggs stop developing for known and unknown reasons.

Scientists estimate that somewhere between 50-80 percent of fertilized eggs arrest in the two weeks between ovulation and when the woman’s next menstrual cycle starts. Those zygotes, who some believe are already people, will never become actual people. 

For my IVF cycle, you will remember that we were down from 21 extracted eggs to 17 fertilized eggs. Of those 17, exactly seven made it to five days post-fertilization. 

Seven. 

That means about 60 percent of the fertilized eggs arrested less than a week after creation. Under normal circumstances, I would never have known any of those fertilized eggs existed, and neither do thousands of other women every month. 

One of these became my son.

Philosophical question: Is a fertilized egg still a child if its existence ends before anyone knew it was? Is a pregnancy still a pregnancy if no one can prove it? Some lawmakers and judges say yes. This has grave implications for some birth control methods like the IUD, the pill, and emergency contraception, which work to prevent implantation of a fertilized egg.

Legal question: Could doctors, and hopeful parents, be held legally responsible for creating fertilized eggs which they know will arrest? That is precisely why fertility clinics induce hyper-ovulation for IVF cycles - doctors know from 40 years of experience that most fertilized eggs will not produce a pregnancy, much less a live birth. 

Legal question: If embryos are considered people, and if doctors are creating many people with the knowledge that most will die, can they be charged with reckless endangerment? Is creating people in a petri dish, freezing and thawing them in test tubes, considered reckless? Are embryologists "engaging in conduct that creates a substantial risk of serious physical injury or death to another person"? Could they face charges?

Feel free to ponder.

The miscarriage conundrum

In natural conception, one egg fertilizes and develops for several days before burrowing into the uterine lining. Once it implants fully, which science says can take up to seven (more) days, it starts to secrete the hormones that give a positive pregnancy test. Congrats to you! You are not just conservative-viewpoint-pregnant but clinically pregnant. 

Except that even under the best circumstances, implanted embryos often don’t survive. Up to 25 percent of detectable pregnancies result in miscarriages in the first trimester. 

When we left off my story, my husband and I had seven fertilized eggs. Doctors carefully put one directly into my uterus, primed just for this event, and froze the rest.

The transfer didn’t work.

The fertilized egg either failed to implant or stopped developing sometime during implantation. I did not become pregnant despite anyone's closely held beliefs. 

Another attempt transferred two thawed blastocysts to double our chances. A week later we found out both had successfully implanted, and I was pregnant with fraternal twins.

And yet sometime early on, one of the embryos stopped developing. 

At nine weeks, I was lying on an exam table listening to two separate heartbeats via a Doppler. At 11 weeks, a high-risk maternal/fetal medicine doctor was explaining to me that it’s "tragically very common" for embryos to stop growing in utero. 

Legal question: If a fertilized egg is a person, and the pregnant woman does something - such as smoking, consuming caffeine, or using birth control - that may (or may not) have prevented that person from latching on or otherwise caused that person to stop developing, could the woman be held responsible for murder? 

Legal question: Which miscarriage cases would be prosecutable, and which wouldn't? Who gets to decide? Explain.

Some for now, some for later, most not at all

I gave birth to one healthy baby boy in spring 2013. We had four fertilized eggs remaining, which we left sitting in storage at minus-196 degrees Celsius for many months.  

In late 2014, we looked to these frozen fertilized eggs to expand our family.

Two separate times the doctors implanted a single blastocyst into my ready uterus. Twice, conception again did not equal life.

A final procedure transferred both remaining zygotes; one failed to implant, and the other became my daughter. She was born in 2015.

One of these became my daughter.

If you’re counting, my story started out with 21 eggs that were joined with sperm.

We ended up with two children out of 21 chances. That means 90 percent of the instances where sperm met egg - which is the point at which personhood supporters believe life begins - resulted in no fetus, no live baby.

Legal question:  It would be considered child abuse or murder to deep-freeze an already-born child. Don't try this. In the event fertilized eggs are designated as people, would freezing and storing them for later use still be legal? What if you froze them, but never intended to use them? Does intent change the result? If so, explain.

Legal question: If pro-life laws prevail, will a woman be forced to transfer as many fertilized eggs as were produced, endangering her life as well as the survival the potential babies in high-order multiples? (Remember Octo-Mom? The doctor who implanted her eight embryos was charged with  negligence. He lost his medical license.) Or will doctors be forced to make fewer embryos, thus significantly reducing the chances of a live birth and effectively making couples undergo many more expensive IVF procedures? List the pros and cons of both.

Embryos to spare

We were extremely fortunate. Thanks to assisted reproductive technologies, I was able to get pregnant and give birth to two children. I sent the fertility clinic my baby announcements, and we had no leftover embryos.

But what about those who do have remaining embryos? Arguably, changes to abortion laws would have the biggest impact on these couples. Generally speaking, the options are: 

• transfer them and hope (or don't hope) for pregnancy,
• destroy them,
• donate them to scientific research,
• leave them frozen indefinitely,
• or give them to another couple in what is known as embryo adoption.

Indeed, courts would rule the destruction of embryos illegal if they are considered people. Justice Amy Coney Barrett signed her name to an ad placed by a pro-life organization that, like many other right-to-life groups, believes IVF is immoral because of embryo destruction that sometimes happens.

"We would be supportive of criminalizing the discarding of frozen embryos or selective reduction through the IVF process," the director said in an interview. To be clear, the group this Supreme Court judge supported wants to imprison fertility doctors for destroying 100 pluripotent human cells.

Similarly, pro-life groups argue against the use of embryos and fetal tissue for scientific purposes. They claim it is inhumane. Yet cells from unused embryos and fetal tissue are enormously useful for vaccinations and medical research into diseases like HIV, Alzheimer's, and spinal cord injuries.

In fact, the the antibody cocktail Trump said "cured" him of COVID was developed with the help of aborted fetal tissue. Where are the pro-life opponents to that? Most are silent, some are looking the other way, a few outright support it. That's a strange way to respect all life.

Or perhaps not so strange. In 2019, Alabama passed an anti-abortion law that stated all embryos are people...except for embryos outside of a uterus. "The egg in the lab doesn’t apply," said Clyde Chambliss, state senator and bill sponsor, during legislative debate. "It’s not in a woman. She’s not pregnant."

Chambliss was adamant that embryos created by doctors would not be considered people, making IVF immune to the prohibitions...while embryos created by sex would be regarded as people. The hypocrisy was palpable. A federal judge blocked the law, pointing to Roe vs. Wade.

Philosophical question: In a world where we (rightly) extend the timeline of "natural death" through vaccinations, antibiotics, chemotherapy, and organ transplants, how is "natural death" considered a threshold for pro-life supporters? If creating life in a lab is "playing God," isn't also extending life in a hospital room? Why is one immoral and the other encouraged?

Material question: Where were pro-life supporters in 2018 when two storage freezers in separate states failed, causing the destruction of thousands of inanimate pre-children? Where were the protesters and right-wing lawmakers who should have been screaming about the murder of these unborn? Conspicuously absent.

Legal question: In the event destroying embryos becomes tantamount to murder, would courts have authority to force a woman to get pregnant with her embryos that she does not want to carry to term? How is this similar or dissimilar from outlawing abortion, which would also force gestation on the unwilling?  

Legal question: Could courts force couples to donate their unwanted embryos, allowing other people to carry them to term even if the biological parents don't want to produce more children? Compare and contrast this scenario with forcing young unwed mothers to give birth, only to put their babies up for adoption unwillingly -- as happened to 1.5 million women and girls from the 1940s to the 1980s. 

Legal question: If doctors can't destroy them and the biological parents don't want them born, and doctors can't use them for research, will embryos be left suspended in freezers for decades? They would join some 400,000 embryos frozen since the 1970s. Is it child abuse to hold the unborn in suspended animation for the foreseeable future? Argue why and why not.  

Clearly, lawmakers and justices who believe embryos are pre-children with all the rights and privileges of the already born could have devastating effects on fertility treatments and couples seeking to become parents. 

I am relieved that my husband and I no longer have to deal with IVF's emotional rollercoasters and financial consequences. I'm also relieved that we don't have to add court cases to our worries about parenting. But we all need to be aware that these changes are an acutely unfair and unjust possibility for future parents. 

Life is already so hard on the infertile. Shameful lawmakers are making it even harder by imposing their religious beliefs on others.  

2024: Philosophical questions now all too real

After Roe vs. Wade was dismantled in 2022, states were free to confer personhood at whatever point they wanted. In Alabama, the state supreme court recently decided that all fertilized eggs are people, causing at least three fertility clinics to half treatment and throwing into question the status of hundreds if not thousands of frozen eggs. 

In response to the (completely valid) public outrage, Alabama Republicans proposed legislation to protect IVF from legal liability, but only for one year - in effect, valid until after the 2024 elections.