After Alabama’s IVF Turmoil, Patients in Other States Are Making Contingency Plans

The Alabama ruling generated widespread disapproval. Recent polling found that two-thirds of Americans oppose the decision, and President Joe Biden criticized it in his State of the Union address, calling on Congress to pass federal IVF protections. Republican national lawmakers, while opposing that legislation, have sought to distance themselves from the court’s decision as well as from broader efforts to limit access to IVF. That’s true even though they largely favor abortion restrictions.

But other states could follow Alabama’s lead. So-called “fetal personhood” laws, which could be used to criminalize the procedure, remain on the books in 11 states, though only some extend legal protections to embryos outside the uterus. Iowa’s legislature has passed a fetal personhood law; it is currently waiting for the governor’s signature. State supreme court justices in South Carolina and Florida have expressed interest in enforcing such a  law, with the Florida court’s chief justice suggesting the state constitution could also offer “rights to the unborn.“

The past few weeks have thrown into sharp relief just how tenuous access to IVF already was.

Patients like Dolan are considering out-of-state embryo storage options. Others said they are considering having a second child earlier, so that they can determine how many of their frozen embryos they will need to use while they still have the legal ability to dispose of any extras.

Taylor Edwards, 31, had been trying to get pregnant since the summer of 2020, but nothing worked. Finally, her doctor told her they were down to their last option: IVF. Edwards’ insurance would help pay some of their costs, but she estimates she and her husband would end up paying close to $40,000 out of pocket.

“All of our savings were just put back into IVF,” she said. “It felt like we were spending thousands of dollars every month just to keep trying.”

Edwards, who lives in Austin, Texas, underwent multiple embryo transfers, watching them fail one by one. The process was physically and mentally exhausting. And it’s something she thinks about now: If Texas law ever mirrored Alabama’s court ruling, would each of those lost embryos be considered a wrongful death? “Does that mean I‘m liable? Is my doctor liable?” she asked.

After the third transfer, Edwards finally became pregnant. And then, 17 weeks in, she received news she’d never thought to worry about: The fetus had a neural tube defect known as encephalocele. The doctor believed it would likely die in utero, or soon after. Edwards flew to Colorado for an abortion, a procedure outlawed in Texas. She grieved for her girl, whom she’d planned to name Phoebe. And then she resumed treatment.