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.
Why can't you just make one embryo at a time? Why do you even need to freeze them?
This person is asking, essentially, why would anyone have embryos “laying around” that are not being implanted to potentially become a baby? To answer this question, we have to back up:
Even being able to get to the stage of IVF where you can *make* an embryo is a huge challenge. Many women don't get past the egg harvesting phase. Many many couples (or single by choice people) go through the egg harvasting phase but, when the egg and sperm are combined in a lab, fertilization doesn't happen. Or, fertilization happens in the petri dish, but the cells don’t mature properly and it’s not viable3.
A couple can go through the whole 1-2 month process4 and at the end, not have any embryos to show for it. So, to even be able to make an embryo is a feat.
This is all insanely expensive. In most states, insurance companies are not required to cover fertility treatment. Out of pocket, one "cycle" of IVF (which means one round of hormone injections to grow eggs which will then be harvested) will run you 10-20K depending on where you live. (Our family was fortunate to have a good portion of it covered by insurance, but not all.) The medication costs are extra. That can be another 5-10K. Genetic testing is also extra — another 6-7K. There are families that are easily 6 figures in debt due to fertility treatment — and they may not even be successful. This is heartbreaking. I've had patients need to do 5-6 rounds of IVF to be able to make ONE embryo. Because this is all so pricey, and because most people want to get pregnant as soon as they can, and because each time you harvest eggs you have to go under anesthesia for a surgery— the goal for most folks is to get the most eggs possible with each cycle, so that you have the highest likelihood of being able to at least make one healthy embryo (healthy meaning genetically euploid).
Not every embryo that is implanted into a uterus will become a baby. As I mentioned, success rates vary widely by clinic (and, also factors related to the couple, like age, health, etc). In general, if the embryo is genetically tested (biopsied and determined to be euploid) success rates at good centers are in the 60-65% range. If the embryo is not genetically tested, success rates go down to as low as a 30% chance of making it to a full term live birth. REI docs are always hesitant to make promises (which I appreciate!). But in general, statistically speaking, having 2 genetically healthy embryos gives you a very high probability of having a baby, at the end of the day. Oh, and transferring the embryo into the uterus is another surgery, and costs another 5-10K (regardless of if the transfer is successful or not).
The decision of what to do with embryos that you will not implant is always hard. Every single woman I know feels some way about this. I have patients whose kids are grown and have no plans to have a future kid, but are still paying the $6oo bucks a year to keep the embryos on ice. Because it *is* heartbreaking knowing that embryo *could* be a life. No decision made during IVF is made lightly. That is one reason why IVF is so strenuous. Nothing is certain and there are no right answers. At every step, there is new information and a decision that must be made, on very little data. It’s a terrible process, and yet, for many, it’s the only option to build a family or to keep open the option to have a family.
I’m don’t live in a red state, so why should I care about this?
If the GOP succeeds in this next election cycle, they will absolutely put in place a national abortion ban and push through similar embryo personhood legislation making these laws federal, not state specific. You will not be protected by living in a blue state.
And, to give a voice to the folks like me, who moved to a red state (and yes, understood the risks inherent in that choice): we deserve healthcare too. Most people don't have the resources to up and move.
No really, why should I care?
You might be thinking -- look l've already created my family. Or, maybe you are thinking, I'm only in my early twenties, I don't need to worry about this right now. Or maybe you are thinking, l'm a man -- these are women's issues.
This isn't just terrible news for someone like me, who has infertility, lives in Texas, and has embryos frozen here.
It's also terrible news for teen girls, young women, AND, boys and men, AND potential grandmothers and grandfathers. The ability to build a family is going to be severely limited by what happened in Alabama.
Even without our reproductive rights under attack, infertility is terrible. If you are doing IVF, it generally means you have been trying for years to become pregnant (or, to stay pregnant) and failing at it. It usually means that your mind is consumed with having a baby. It also usually means you are spending large piles of cash on a process that has zero guarantee of working out for you, and over which you have very little, if any, control.
So it’s no surprise that the incidence of Major Depressive Disorder is higher in women who are going through fertility treatment than in the general population (rates of depression for women with infertility clock in around 20-40%). The rates of anxiety are higher too (around 30%). And, fun news again, even after you have a baby, if you conceived via IVF (and/or experienced recurrent miscarriages) you are more likely than your counterparts to suffer from postpartum depression or anxiety. As many as one in four women who go on to have a baby after IVF will develop a mental health problem.
I write all of this not to depress you. I share it because women going through IVF already have SO MUCH shame, guilt, burden, literal work (!), and this is in the best case scenario (when they have access to a very expensive treatment). And now, we are adding even more uncertainty and heartache.
There is possibly some reason to hope. Embryonic personhood is hugely unpopular, even in people who identify as conservative.
just published a piece today about how in Florida, a fetal rights bill was postponed due to the fall out in Alabama.To end this very long note, I hope the information I’ve shared here will help your ability to advocate for yourself and your family. I also hope that if you are fearful about your own situation, as a person with infertility, that you know you are not alone.
Yesterday, I sent an email to my reproductive endocrinologist in Houston, asking her if the clinic where my embryos are stored is advising patients to move their embryos out of Texas. I am waiting to hear back.
xo
Pooja
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- ‘s Abortion Everyday is a highly researched newsletter about what’s going on in reproductive rights
On Instagram, REIs Dr. Natalie Crawford and Dr. Lora Shahine are both excellent follows.
The last time I posted about abortion, my DMs were a dumpster fire!
It wasn’t until I went through it that I realized what a privilege it is to even have the option to do IVF (or any type of fertility treatment). It’s a privilege to have the financial resources, it’s also a privilege to have the level of education and understanding to get through it somewhat competently. It’s also a privilege to be able to make the time to go to the 100s of lab draws, ultrasounds, and all the required doctors appointments — most hourly workers would not be able to take the time off of their jobs to enable this. IVF is basically a 2nd full time job.
IVF lab statistics are published online here. Your chances of success (having a baby) depend largely on the quality of the lab, so that's why labs are required to publish their success rates.
If everything runs smoothly and the doses of medication that the woman or birthing person takes don’t need to be adjusted and there are no complications with harvesting eggs and collecting sperm.
Thank you for sharing your personal story and for this detailed post about what is at stake in this dangerous ruling in Alabama.
Here is a thought; If Embryos are children, could one sue the state of Alabama to receive tax credits for the number of “children” they have frozen? There are various tax breaks for families with children aren’t there?
Thank you for this clear post and the emotional depth it offers in order to invite everyone to rlate to this challange. I suspect you are preaching to the quire and that most your readers lean towards one political spectrum. I wish this note reached a wider audience.
You’re doing good work! Keep being courageous and continue to offer the healing that you do.