Maryland couple Jess and Josh Shumway want nothing more than to have a baby of their own. After months of unsuccessfully trying to get pregnant, they turned to fertility doctors for help.
They’ve since undergone several rounds of in vitro fertilization over the past five years, a process in which doctors attempt to fertilize eggs outside the body, with hopes to transfer a resulting embryo back into a uterus. For the Shumways, that’s resulted in 12 embryos and three pregnancies, with each ending in miscarriage.
“The cycle of grief is just constant,” Jess Shumway said. “Knock you down and you get back up and then you get knocked over again.”
Now, they are are among those worried about a new complication for the estimated one in eight couples experiencing infertility: whether the Supreme Court decision that overturned the right to have an abortion could make it even harder to have a baby.
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“All we want is to bring life into this world,” Josh Shumway said. “And now this is in danger because of the fall of Roe v. Wade. It doesn't make sense.”
Fertility advocates say there’s nothing about the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization that immediately puts assisted reproductive technologies like IVF in jeopardy, especially in D.C., Maryland and Virginia, where abortion access remains intact.
But they’re worried about what happens as some states rewrite or enforce anti-abortion laws that define life as beginning at conception. They’re also watching the rise of “personhood” bills introduced federally and in states across the country that could give embryos constitutional rights.
“If we are going to say those embryos are people or a person, gosh, can we freeze them? Can we do genetic testing? … What happens if those embryos are not viable for a pregnancy, or is that murder?” said Barbara Collura, president and CEO of RESOLVE - The National Infertility Association, based in Virginia. “It very much concerns us, when we look at personhood rights to an embryo, what that could do to the practice of IVF and helping people build their family.”
Her organization estimates more than 100 personhood bills have been introduced nationally over the past several years, with states including Georgia and Arizona approving the measure.
So far, she said, fertility advocates have been able to protect access to assisted reproductive technologies in those states.
“You have to look at every single word. You have to look at where every comma is. You have to look at what the intent is. And then you have to look at how somebody could potentially interpret it,” she said, adding: “We have to stay on the edge of our seat in ensuring that nothing passes that's going to prevent people from building their family.”
Like the Shumways, Marquitta and Elle Henson are most concerned about what such legislation could mean for discarding embryos. Both couples say they discarded fertilized eggs found to have chromosomal abnormalities, since research shows those lead to higher rates of miscarriage or severe birth defects.
The Hensons have spent nearly $60,000 to build their family through what’s called reciprocal IVF – where one person carries the other’s embryo. In the Maryland couple’s case, both women underwent an egg retrieval and embryo transfer, and each carried a pregnancy to term. They now have two children and hope for a third, and said they plan to discard any remaining embryos.
“If you lose that right … what do you do?” Elle Henson said, later adding: “The decision should be based on the family and not the government.”
Though many anti-abortion groups support IVF, since infertility impacts people of all walks of life, some want to see restrictions on the practice.
The top lawyer for the Personhood Alliance, the anti-abortion organization pushing for state legislatures to adopt language that would grant embryos constitutional rights, told News4 he doesn’t consider IVF to be abortion.
Still, Gualberto Garcia Jones said he would like to see tougher restrictions on the industry, such as limits on how many embryos can be created in a cycle and laws to prevent embryos from being discarded or donated to science.
“These are valuable human beings. And we need to weigh both the interests, the legitimate interests of those families who want to have children, but also the interests of that human being being treated humanely,” Garcia Jones said.
He acknowledged limiting the number of embryos that can be created in one IVF cycle would raise the cost of a procedure already considered out of reach to many. According to the patient advocacy website FertilityIQ.com, the average cost of one uninsured IVF cycle is more than $23,000.
“We're talking about human life. And therefore, I believe that human life trumps the cost,” he said, adding: “But these are questions that the legislatures should begin to debate.”
Dr. Kate Devine, the executive medical director and chief research officer at US Fertility, said she’s worried restrictions like what Garcia Jones suggests would not only drive up cost, but lead to poorer outcomes.
For example, if people are worried about their right to discard embryos, they may decide to transfer more than is recommended.
“We have come so far as a field in our pursuit of what we call single embryo transfer, because multiple [embryo] pregnancies are high-risk,” said Devine, who is also director of research at Shady Grove Fertility. “It would literally be a tragedy, in my opinion, if we were to have to back down from that and transfer more embryos, because patients are concerned about their ability to store that highly valuable embryo.”
Devine said she and her partners nationwide have fielded calls from patients with a variety of concerns since the Dobbs decision was announced, such as whether they should relocate embryos stored in states set to pass abortion bans, or whether they should avoid hiring a gestational surrogate – someone who carries another person’s embryo to term – from those states.
But Devine said she’s reassuring her patients that nothing so far has impacted the treatments so many need to build their families.
“I do think that people are asking great questions, that we need this advocacy, that we need this awareness to make sure that these laws are not interpreted the wrong way and do not have these unintended consequences,” she said. “But I don't think that there is cause for hysteria at this point. I think there is cause for vigilance.”
Photographer Carlos Olazagasti contributed to this report.
