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States say abortion bans don't affect IVF. Providers and lawyers are worried anyway.

New abortion bans have created confusion and legal questions about the practice of discarding embryos as part of the IVF process.
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Arkansas' abortion ban, which went into effect on Friday, defines an "unborn child" as starting at fertilization. That left Dean Moutos, who runs Arkansas Fertility & Gynecology, the state’s sole provider of in vitro fertilization, with questions.

The law makes no mention of IVF, but Moutos immediately wondered: Could his patients’ frozen embryos be defined as unborn children under the law? Could discarding those embryos be considered an abortion?

"I don’t know whether the people who wrote this law fully understood the downstream effects of it," he said. "But everybody across the country, including us in Arkansas, is very concerned about the potential."

In Arkansas' case, the office of state Attorney General Leslie Rutledge told NBC News that the ban "has no implications for IVF treatments." Attorneys general offices in Alabama and Oklahoma said the same of their laws.

But other states have not yet clarified how far their abortion bans extend, and abortion laws don't generally address the issue of frozen embryos directly. So some lawyers and fertility clinics aren’t convinced that the new restrictions will leave the IVF process untouched.

Image: An embryologist shows an ovocyte after it was inseminated at the Virginia Center for Reproductive Medicine on June 12, 2019 in Reston, Va.
An embryologist shows an ovocyte after it was inseminated at the Virginia Center for Reproductive Medicine on June 12, 2019 in Reston, Va.Ivan Couronne / AFP via Getty Images file

"What happens to IVF pre-implantation embryos in the freezers? Can couples, patients decide to discard them or not?" said Susan Crockin, a legal scholar at Georgetown’s O’Neill Institute for National and Global Health Law. 

"The devil is in the details," she added. "It’s going to depend on the language of the statute and the tenacity of individual prosecutors who are interpreting it."

Could an embryo be considered a person?

The practice of IVF involves combining sperm and eggs to create embryos in a lab, then implanting one or more of those embryos in a person’s uterus. Patients often choose to store additional frozen embryos for future IVF cycles. Some people rely on IVF as a solution to fertility challenges, while others use it to avoid passing on a genetic disorder, since embryos can be tested before implantation.

Most existing or expected state abortion bans refer specifically to ending a pregnancy, Crockin said, so they shouldn’t apply to IVF. But some lawyers are concerned nonetheless about "personhood" laws that treat a fertilized egg as a human being.

"If a law is written to establish personhood of a fertilized egg or an embryo, for example, then discarding an embryo would violate that law. It would be considered homicide," said Priscilla Smith, director of the Program for the Study of Reproductive Justice at Yale Law School.

That might even apply, legal experts said, to people who damage an embryo in a lab or clinic. Or in some cases, patients who don’t intend to store or use an embryo might be forced to relinquish control over it to a doctor or clinic, as is already the case under Louisiana law.

"If legislators enact personhood laws, they will substantially undermine IVF patients’ ability to make decisions about their care, including what to do with frozen embryos," said Karla Torres, senior human rights counsel at the Center for Reproductive Rights.

Attorneys general offices in Kentucky, Missouri, South Dakota and Texas did not respond to inquiries about whether their abortion bans could affect IVF. North Dakota’s attorney general office referred NBC News to a letter enforcing the state's ban but declined to comment further. Tennessee's directed NBC News to the language in its trigger law, and Mississippi’s pointed to a section of the state code.

In Idaho, the attorney general's office said it will be up to individual prosecutors in each of the state's 44 counties to decide how to enforce its abortion ban, which is set to go into effect in less than 30 days.

"We will defer questions on potential enforcement to prosecutors," the office said in a statement.

Questions about shipping and storing embryos

Kolin Ozonian, CEO of Global Premier Fertility, a company that manages fertility clinics, said that in states where abortion is outlawed, some clinics are considering moving embryos to places where they can discard them without legal questions.

"Do you ship the embryos out of state and then discard them? Do you put them in long-term storage forever? Do the parents want to keep paying for it? Does the clinic pay for it? All those questions are trying to be figured out with a lot of lawyers, business people and doctors," he said.

Crockin said there are also legal questions about whether personhood laws could restrict the shipping of embryos across state lines.

In North and South Dakota, the Sanford Health medical system said it has enlisted its ethics committee to help IVF providers decide what’s next. South Dakota enacted its abortion ban on Friday, and North Dakota's ban is scheduled to take effect on July 28.

"We are carefully evaluating any potential impact of the Supreme Court decision on the ability of our providers to deliver medically necessary care to our patients," said Jeremy Cauwels, Sanford Health’s chief physician.

One way to steer clear of legal questions around abortion bans and IVF would be to freeze sperm and eggs rather than embryos. But that would be far less efficient and less likely to result in pregnancy, Moutos said.

For now, he added, he feels reassured by the statement from the Arkansas attorney general’s office, but he’s still telling patients to hold off on discarding embryos until he consults legal experts.

"We don’t want to do anything that would jeopardize our practice or our patients running afoul of the law," he said.

If abortion bans do affect IVF, it could become even more costly

If abortion laws do turn out to limit the practice of discarding embryos, Ozonian said, IVF could get more expensive, since clinics or patients might have to pay for long-term embryo storage. IVF treatment already costs $19,000, on average, according to a 2014 study.

Companies may also be less inclined to cover the costs of IVF for employees as a benefit if they fear legal repercussions or significantly higher costs.

That's not to mention the physical and emotional toll of egg extraction, implantation and other parts of the IVF process on people going through it.

"The process itself is lonely. It’s emotionally draining and challenging at all levels," said Maria Costantini-Ferrando, a reproductive endocrinologist at Reproductive Medicine Associates in New Jersey. "Now you have to worry about: What are the officials saying? What is the government going to do? So it’s adding this huge stress component that wasn’t present before."

Ozonian said IVF clinics that partner with his company, most of which are in California, have already heard some prospective patients say they’re "afraid to now go through treatment, given some of those legislation changes."

Even if current laws wind up having no impact on IVF, some legal experts wonder whether future policies could.

"The thing about these trigger laws that I’m worrying about is that they’re the tip of the iceberg," Crockin said. "They’re just the ones that people thought of before the Supreme Court came down with this decision. And for everything we’re hearing from anti-abortion advocates, there’s a tremendous interest in pushing the law much further."

In their dissenting opinion on Friday, Supreme Court Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan mentioned this possibility, writing that "the Court may face questions about the application of abortion regulations to medical care most people view as quite different from abortion," including IVF.

"When people say this isn’t going to impact IVF, one of my answers is, 'Well, the dissent certainly is concerned about where this might go,'" Crockin said.