How Overturning Roe Impacts Fertility Care - Part II

Post image - How Overturning Roe Impacts Fertility Care - Part II

ICYMI: Over the last few weeks, we’ve pulled together experts in the field of reproductive health and law to address some of your most pressing and evolving questions as it relates to the Supreme Court’s decision to overturn Roe v Wade and how this impacts fertility patients. Check out a recap of Part I of our discussion here.

In our latest conversation hosted on August 3rd 2022, our live panel was led by two of Spring’s Medical Directors, Dr. Monica Pasternak and Dr. Catha Fischer, alongside special guest, Alexis Cirel, the founding partner of the Fertility Law Group at Warshaw Burstein, LLP in Manhattan, who has studied the effects of Dobbs on the fertility space.

You can find a link to the recording here.

A recap of Q+A below.
*Please note that these answers reflect the best information we had at the time this discussion was hosted. Over time, this information can and will likely evolve.

If I have fertilized eggs that are currently frozen (in California) and I decide not to use all of them and opt to have them disposed of, is that considered an “abortion”? Does the answer to this change if some of these embryos are not viable and do you suggest I discard those that are not viable now if there’s a chance I won’t be able to later?

Within California this will not be applicable, and we believe CA will remain a safe state. However, that is not the same for all states. There is language around “personhood” laws outside of CA that could change how fertilized eggs (aka embryos) are classified, specifically in states where trigger laws have been enacted.  Currently, states with abortion bans in place have language couched in “terminating a pregnancy” so under most state laws, this wouldn’t impact embryos that haven’t been transferred to the uterus with subsequent successful implantation.  

If we are residents of states that have already codified a pregnant person’s right to make healthcare decisions alongside healthcare providers, are we currently affected by the Roe v Wade reversal?

To have something codified essentially means it’s written into the laws of the state. If you live in a state where there are state law protections, that helps. There are many individual states that do have safe-haven laws to protect individuals, but there are unfortunately also many states that do not have protections, and some that actually have complete bans.  After the Dobbs decision, there is no federally-protected constitutional right to an abortion even in safe haven states.

Will screening tests (like amniocentesis) still be allowed in specific states with bans in place? And if you are allowed to do these procedures, will you be put on a watch list to track your pregnancy following this?

A lot will come down the language written into state laws. Currently, the language of many of these statutes states that “life begins at fertilization” and this is discussed in the context of a pregnancy. Elective abortion is defined as taking specific measures/medical interventions intended to terminate a pregnancy. Under some laws with broader or more vague language there may be a loophole to claim that certain invasive diagnostic tests such as amniocentesis could potentially cause a miscarriage (this by the way is exceedingly rare, most specialists will tell you the current incidence of this is about 1/1000), and as a result, it could potentially flag your case given what you might decide to do as a result. 

A couple of years ago we were given the option to donate frozen embryos that would be used for research – what is Spring’s plan for pre-existing embryos that patients do not intend to/may not use?

At any point you can change your consent and donate tissue to research with Spring, we are not changing any of our policies and do not intend to. If you have embryos stored at Spring, can still to donate to research. However we cannot necessarily say the same for other clinics especially in other states.

For people considering freezing eggs or embryos what legally should you be considering?

I would consider what state you’re in and ideally do this in a state where they don’t have laws that keep you from doing what you want to with your embryos. You can also consider freezing a mix of eggs and embryos to avoid some of the challenges that will come up with embryos (as frozen eggs aren’t considered the same as embryos when it comes to these matters, they really cannot be assigned personhood). However please speak with your provider about your specific circumstances.

How do we think things will be different for frozen eggs (vs. embryos)?

As of now, we are not aware of any direct risk to frozen eggs.  The definition of an ‘unborn child’ in many of the trigger laws is couched in terms of fertilization (an egg fertility by a sperm), so the individual gametes themselves do not appear to be at risk today. 

I am a surrogate advocate at a surrogate agency. We have so many girls avoiding surrogacy right now because of all of the unknowns. Electively going into a pregnancy right now is so scary. I’m hopeful to learn about how these new laws will affect surrogates as well.

As of today, we encourage staying away from Oklahoma as it relates to surrogacy. It’s worth noting too that the way most abortion bans are defined now, the liability is on the doctor, not the woman who receives the abortion. There is also law supporting all US citizens’ right to interstate travel, which helps. For anyone considering a surrogacy journey, we now need to analyze not only whether a state is a surrogacy friendly, but also must look at whether it has an abortion ban in place.

Does the location of the woman who is the “owner” of the embryos matter? If the embryos are in a safe state but the woman is not, does this matter?

No. The laws as they exist right now talk about what the physician does and where the procedure/disposal is done. We are not at the point yet where this has been applied to embryos.

Should travel to unsafe/restrictive states be avoided during certain periods (eg early pregnancy)?

Unfortunately, with many of these laws the nuances of a D&C for a miscarriage vs an elective abortion are not being considered. Currently at Spring, we are encouraging patients to be cautious as to where they are traveling in the first trimester. In general, pregnancy travel is a conversation you want to have between you and your provider.

Have more questions you’d like answered? Shoot them our way on Instagram @SpringFertility or via email at [email protected]. Our goal is to continue to be an informed resource to help support and guide all patients and our broader community.