Experts say Amy Coney Barrett's nomination could threaten IVF. Here's why.

Experts say Amy Coney Barrett's nomination could threaten IVF. Here's why.
Supreme Court nominee Judge Amy Coney Barrett attends the second day of her confirmation hearing before the Senate Judiciary Committee on Capitol Hill in Washington, DC, October 13, 2020.Kevin Dietsch/Reuters
  • Amy Coney Barrett has a history of supporting anti-choice groups that believe in fetal personhood.
  • Legislation that recognizes embryos as legal persons would complicate standard procedures involved in IVF.
  • Freezing embryos and performing genetic testing, as well as discarding unused embryos, could be criminalized if personhood bills were to be passed.

If Amy Coney Barrett is seated on the Supreme Court, the implications for reproductive rights will extend far beyond birth control, Eve Feinberg, MD, told Business Insider last week.

The judge has a history of supporting anti-choice groups that promote the belief that life begins at fertilization, or "fetal personhood," and seek to criminalize aspects of in vitro fertilization.

During her confirmation hearing, Barrett has evaded questions about her views on IVF and whether she would move to overturn Roe v. Wade. When asked whether criminalizing IVF would be constitutional, she replied that she couldn't "answer questions in the abstract."
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Still, Barrett's association with anti-choice groups like Right to Life Michiana — a group whose stance against discarding unused embryos created in the IVF process is considered extreme even in anti-abortion circles — is enough to raise concern among fertility experts.

"The seating of Amy Coney Barrett to the Supreme Court threatens those who seek to build a family through in-vitro fertilization," Feinberg and co-editors of the journal Fertility and Sterility wrote in a letter published last Monday.

They worry that if Barrett supports legislation that recognizes every embryo created during IVF as a legal person, performing standard procedures involving those embryos could put physicians at risk for criminal violation.
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Personhood legislation could criminalize genetic testing and freezing embryos

It's unlikely that personhood legislation would result in IVF being outlawed entirely, but it would make it "incredibly difficult" for physicians to perform assisted reproductive technology to the current standard of care, said Barbara Collura, president and CEO of RESOLVE: The National Infertility Association.

"If you are stating that an embryo is a person, then many things that occur in an IVF laboratory become extremely difficult," Collura told Business Insider. In a typical IVF treatment, doctors will try to fertilize as many embryos as possible because not every embryo results in a live birth, Collura said. After fertilizing the embryos in a lab, the doctor will freeze them all and often order genetic testing to rule out abnormalities that could lead to pregnancy loss or stillbirth.
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From there, the doctor would thaw and implant the embryos one at a time until one results in a successful pregnancy.

If the embryos have the right of legal personhood, standard procedures like genetic testing and cryopreservation, or freezing, could be called into question because there's a small chance of harm to the embryo.

Some personhood bills proposed at the state level have been written under homicide statutes, Collura said, meaning that a lab worker who inadvertently damages an embryo while unfreezing it could even be charged with manslaughter.
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Discarding unused embryos would also be a crime under personhood laws

After a family is finished with IVF, they have the option of saving unused embryos for future attempts at pregnancy, donating them to science, or discarding them. Collura said some people just leave the embryos frozen if they can't make a decision.

In some situations, people may want to discard embryos that have tested positive for a genetic disease that would affect the viability of the pregnancy.

"Not every embryo leads to a live birth," Feinberg previously told Business Insider. "I think women who have embryos that are positive for a genetic disease should not be forced to transfer those embryos. And I think that in certain situations, discarding of embryos is morally acceptable."
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Certain anti-choice groups, like Right to Life Michiana, equate discarding embryos to abortion.

In an interview with The Guardian, the group's executive director Jackie Appleman said: "Whether embryos are implanted in the woman and then selectively reduced or it's done in a petri dish and then discarded, you're still ending a new human life at that point and we do oppose that."

Not all abortion adversaries are against IVF

At this point, no one knows how Barrett would vote on Roe v. Wade and associated personhood bills if she's confirmed to the Supreme Court.
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It's not a given that someone who supports personhood legislation would be against IVF, Collura said. She's spoken with "staunch, publicly pro-life state legislators" who, when faced with the implications of personhood for IVF, reevaluated their views.

"It just goes to show you that you can have people who are pro-life and have this pro-life record as a legislator, yet, a lot of times, they'll say personhood goes too far," Collura said. Read more:
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