Embryos on Ice in Texas
A primer on IVF, the loneliness of infertility, and embryos as people.
I’m writing today’s newsletter in the midst of a chaotic week. Justin has been traveling internationally for work. I’ve been on solo-parenting duty. We have grandparents arriving tomorrow. I leave later this week for a one night trip to Minneapolis, where I will be delivering a keynote to a group of civil engineers. Justin is home tomorrow. The tetris of dual-working parenthood doesn’t stop!
You know what else hasn’t stopped? The assault on women’s bodily autonomy in the United States.
“This dangerous decision sets an incredibly concerning precedent for IVF access across the United States…The removal of options for preserving fertility is an unconscionable act of inhumanity to add to existing suffering—one that I, as a physician who cares for patients with cancer, feel deeply.”
- Dr. Verda J. Hicks MD, president of the American College of Obstetricians and Gynecologists
Ever since the Alabama Supreme Court ruled that embryos are people last week, I have been preoccupied. Justin and I were fortunate to have our son K through IVF (I wrote about it for The New York Times in 2022). We now have embryos frozen and stored in a lab in Houston. It’s only a matter of time before a ruling like the one in Alabama comes down through the Texas Supreme Court.
In the wake of the ruling, I took to my IG stories (as one does). To my shock and pleasant surprise, I did not receive any hate in my DMs.1 Instead, I got a ton of Thank You’s. From women who are scared, from women with frozen eggs; from women who live in red states; from women who are currently going through IVF (in-vitro fertilization) or IUI (intrauterine insemination); from women who had cancer and freezing embryos was keeping open the option of kids, one day; from women who are gay and for whom IVF is the only option.
So, in last week’s newsletter, I asked you how you felt about reading my thoughts on IVF, Alabama, and reproductive rights.
So that’s what we will do today. But first, before we dive in, a word on loneliness.
Going through IVF is lonely.
I hypothesize that one reason for the loneliness is that assisted reproductive technology/ IVF is highly technical. Most people in your life do not know the terminology and have no concept of the process. So, putting aside the loss of control and accompanying distress, it’s just plain hard to have a conversation with someone about a process that is taking up about 10 or more hours of your week (and, likely 99.9% of your brain space) when they don’t understand the language. Likewise, because your friends might not know what IVF entails or what words to use, they don’t ask about it. I don’t blame anyone — infertility is often shrouded in secrecy.
IVF speak is a foreign language you learn only if you must go through it.
I tell my patients that it’s like realizing you’ve signed up for a PhD program when an $8,000 dollar box of medication arrives at your front door.
Before I went through IVF, I didn’t grasp the meaning behind why someone would freeze eggs versus embryos, or what it meant when a "transfer" happens, or what genetic testing of an embryo was or why you might need it2.
This week’s piece is structured in bullet format. My hope is that you can forward it to friends, family, colleagues — whoever — not only to help them understand why you might be terrified about Alabama’s ruling, but perhaps, even more so, to give them a peek into the technical process of IVF. Maybe if more of us understood what IVF entails, it wouldn't have to feel so damn lonely?
Okay, here we go.
What happened in Alabama?
Last week, the Alabama Supreme Court ruled that embryos are legally considered people, not property. This decision came about because a couple brought a wrongful death suit against a fertility clinic that did not properly secure their frozen embryos. The embryos were dropped on the floor and destroyed. The couple sued the clinic. This went through the Alabama lower courts first, and the case was thrown out because embryos did not qualify as children. The case was referred to the Alabama Supreme Court, who decided that the wrongful death lawsuit applied because, in their eyes, embryos are unborn children.
Is this surprising?
No. Reproductive rights groups and Reproductive Endocrinologists (REI’s for short - these are the physicians who treat couples with infertility) have been worried about embryonic personhood bills ever since Roe was overturned.
This is because Trump has instilled people on the bench that have openly plainly reported that they do not believe IVF should be legal. For example, in December 2019, Senate Republicans voted to confirm Sarah Pitlyk to a lifetime appointment on the Missouri courts. Pitlyk has publicly stated that she is against IVF, surrogacy and birth control. Cool cool cool.
Why is it such a big deal for an embryo to be legally considered a person?
K, buckle up, quick science lesson: IVF requires sperm and egg to be combined in a lab by embryologists to create an embryo. Prior to the Alabama ruling, in all states, an embryo was considered property. Not a person.
Typically, leftover frozen embryos are either donated to science, donated to another couple who cannot not make their own embryos (due to poor egg or sperm quality, genetic disorder, or other reasons), or discarded. Now, because an embryo is a person, discarding an embryo is murder in Alabama (we do not yet know if prosecutors in AL would actually bring charges).
Giving embryos personhood means that fertility clinics would need to either keep storing every embryo, or, not freeze embryos at all. There are numerous reasons why both of those options are infeasible. Are you allowed to freeze something that is legally a person? Currently, IVF patients pay a yearly fee (anywhere from $500-$1000 a year) to keep their embryos frozen. People would certainly default on those payments and then what happens? Well, turns out it probably doesn't matter. Currently, the largest hospital in Alabama, the University of Alabama at Birmingham Hospital, has stopped IVF treatment, and other AL clinics have followed.
Why did they close? Stay with me here. There are many downstream consequences of embryo personhood (I cannot believe that is phrase is a thing). For example, what about genetic testing? Many patients decide to do genetic testing (me and Justin did), because genetically tested embryos have a higher success rate of “taking” and leading to a baby being born. For couples with genetic disorders, or a family history of certain diseases, genetic testing is essentially the only ay for them to create a family. To do genetic testing, the embryologist takes a biopsy of the embryo. But how would a frozen embryo/ “person” consent?
During the embryo freezing and thawing process, not all embryos make it. There is natural attrition. The lower quality embryos disintegrate. Is that murder? Alabama says yes. No doctor or medical clinic is going to stay open under this level of liability.
The Alabama legislation makes it so that a frozen clump of cells that has a 30-60% of becoming a baby through highly specific technology must be treated as a person by the law.
Okay, I know I’ve just thrown a lot at you. There is still more, though.