What If IVF Is Next? The U.S. Supreme Court And My Very Being

Essay

When Roe v. Wade was overturned last month, Americans were quick to speculate what the U.S. Supreme Court might come after next. Many noted Justice Clarence Thomas’ concurring opinion that urged the Court to “reconsider” rulings on contraceptives and same-sex marriage.

I am particularly worried about the future legality of in vitro fertilization (IVF). Part of my concern is because of the would-be “scientific” connection between the procedures of ending a pregnancy and starting one. And I’m also concerned because IVF is how my twin brother and I came into this world.

The Supreme Court made it clear it has no problem tearing down family planning methods when it overturned Roe. What if they now make it harder (or outright illegal) for those who do want to bear children and can’t — like my mom?

As a woman, it’s another potential intrusion on the rights to make choices about my body. But in a very different way, as a child born from IVF, it’s a threat to the very idea of my existence.

An estimated 8 million IVF babies have been born since the world’s first IVF baby was born in 1978 in England. IVF soon spread across the globe; the first U.S. IVF baby was born in 1981, and France’s first “test tube baby” was born in 1982. More recently, Costa Rica ended one of the world's last full IVF bans in 2016. Now, like with abortion, the U.S. could go from avant-garde in the world in giving women control over their bodies, to avant-garde in taking back that freedom.

What is In Vitro Fertilization?

IVF is an assisted reproductive technology, where eggs are collected from the ovaries and fertilized by sperm in a test tube, or elsewhere in a lab (when my brother and I were old enough to learn what IVF was, we gleefully told our middle school classmates that we were made in test tubes). One cycle can take around 3 weeks, sometimes longer. It is common to fertilize more than one egg at a time to increase the chances of success. Once an embryo has been successfully planted back in the womb, surplus or ‘leftover’ eggs are often frozen for possible later use, or discarded.

Some people plant multiple embryos back into the womb for even better chances, which is why multiple pregnancy births — twins, triplets, quadruplets, etc. — are not uncommon with IVF pregnancies. Every once in a while, when someone talks with me long enough to learn that I’m an IVF baby, they say, “That’s why you have a twin!"

As the U.S. enters a new era (or perhaps goes back in time) regarding reproductive rights and laws, some states are introducing personhood laws, striving to give fertilized eggs certain Constitutional rights. The claim that life begins at fertilization could mean that the part in the IVF process where surplus fertilized eggs are discarded or frozen could now be considered homicide. Once an egg is fertilized, could anything other than transfer of the embryo back to a womb be considered criminal, even if that embryo is not viable?

You could write off these questions as hypothetical. But stories are already pouring in since the Dobbs decision overturned Roe v. Wade about women across the U.S. who needed to obtain life-saving abortions, and their doctors hesitated for fear of violating the law. The dominant political party in my own home state of Idaho recently rejected supporting measures to add a clause in its anti-abortion stance to allow abortion in instances to save the mother. Hypothetical questions get real very, very quickly when the Supreme Court turns radical.

Whether the Court will turn to IVF, or other social and medical issues, first is for now still a hypothetical. As a child of a successful IVF procedure, this legal uncertainty scares me the most. It is up to state legislatures now to interpret the new language surrounding how abortion bans apply to IVF and other fertility treatments. All we can do is sit and wait.

Risky and expensive

My mom never received a concrete answer for why she struggled to get pregnant; most people facing infertility don’t.

My parents sacrificed a lot for IVF. It’s expensive, and most private insurance companies don’t cover it. They had to drive back and forth from their small Midwestern town to reach the fertility clinic, a six-hour drive each way.

Right in the middle of their many appointments, the 9/11 terrorist attacks happened. While our nation grieved, long queues began lining up at gas stations amid the nationwide fear of a possible gas shortage. My parents waited in those queues, anxious and worried that they wouldn't be able to secure — and afford — enough fuel to make their time-sensitive appointments. They scraped by. Still, we all know our story is a lucky one.

I think about IVF often, maybe more than I should. Any birth is a one in a million chance, a series of circumstances in the lives of the would-be parents, and the virtually infinite numbers of sperm and eggs that never see the light of day. We’ve all made those calculations of what it took to get us here. I, for one, can add that it would have been impossible to have my twin brother (or for him to have me, and for both of us to simply be here) if my parents hadn’t been able to turn to IVF.

That my parents were in the position to pursue IVF is, to me, everything. With its difficulties, how could I or anyone else blame them if they had chosen a different route than IVF, such as adoption, instead? But most importantly, they had the choice of IVF, without fear of the legal complications that I worry will soon overshadow the next generation of prospective IVF patients.

Removing "the marriage act"

The questioning of IVF’s ethics and legality is not new, and arguments against IVF are frequently caught up in religion. In many countries, such as those under Islamic law, most assisted reproductive technologies including IVF are only permitted between married couples. Some countries continue to withhold IVF treatment from lesbian and LGBTQ+ couples.

Arguments against IVF are frequently caught up in religion.

It has crossed my mind over the years if my extended family, many of them devout Catholics, think of me differently because of IVF. It is a curious thing to ponder if members of my own family consider me less than them, or if they think I am less in the eyes of their God, because I was born in a way their church thinks is unholy.

As for the religion I do believe in, my childhood Lutheran confirmation classes were open about discussing the joys that can result of IVF (i.e. my literal existence).

Am I overreacting? It's true that no Supreme Court Justice has come after IVF yet as explicitly as Justice Thomas has come after the rights and well-being of LGBTQ+ Americans.

But after Roe was overturned, nobody should again be naive nor complacent. Courts will now have the opportunity to interpret personhood laws to consider IVF as harmful and illegal, or at least introduce barriers to it. The scientific progress that allowed me to be born could quickly became my native country's next political target. If it comes to that, I will of course do all that I can to oppose it.

Whether or not the battle comes, and who would win, are impossible to predict. What I can say about such thoughts and actions is that ,for me, this is the definition of personhood.