Whenever anyone asks whether I’m done having children, my answer is: “Yes, but . . . .” That’s because, although my husband and I have two young children, we also have six potential babies. The latter are embryos created years ago through in vitro fertilization and are now frozen in liquid nitrogen in a Maryland lab.

While I mostly feel like our family is complete, I haven’t been able to bring myself to decide what to do with those frozen bundles of our DNA. The decision has become even more fraught since last year when the Supreme Court stripped away the federal right to an abortion in Dobbs v. Jackson Women’s Health Organization. It’s unclear how Dobbs could affect autonomy over the estimated 1.5 million frozen embryos nationwide, but it’s a worry.

“What happens in three to four years when [lawmakers have] done what they can to restrict abortion? Where do they go next? The rights of embryos, IVF” and genetic testing, says Barbara Collura, president, and chief executive of Resolve: The National Infertility Association.

The doctors, scientists, patients, and advocacy groups I interviewed said their biggest fears rest in the ambiguity in the wording of restrictive abortion measures. They’re worried about the potential for poorly worded language that could intentionally or even unintentionally curtail rights over embryos.

“It’s still very murky,” says Sean Tipton, the chief advocacy officer for the American Society for Reproductive Medicine, or ASRM. “We can’t assure that legislators won’t take rights away and treat a fertilized egg as human, but what we do have is time.”

DONATING EMBRYS

The Pew Research Center reports that one-third of U.S. adults have used fertility treatments or know someone who has, and at least 1 million babies have been born in the United States since 1996 thanks to assisted reproductive technology involving embryos or eggs in a lab.

If patients don’t want to use their embryos, the options are to destroy them, donate them to someone else, or donate them for scientific research. I’ve always assumed that my husband and I would donate any of our unused embryos for medical research. But Dobbs has made a logistically and emotionally onerous process even more difficult, if not impossible for some.

“So often people think, ‘Oh, I’ll just donate [unused embryos] for research,'” says Vickie Schafer, a psychologist outside of Austin who counsels women dealing with issues around reproduction, “and then there’s the reality that it’s pretty hard.”

There’s effectively no federal funding for embryonic research, which means there are a limited number of private labs seeking the specific kinds of frozen embryos that come from an IVF cycle. The patients, not their fertility clinics, are responsible for finding and contracting with these private research institutions. One major destination for embryos has long been the RENEW Biobank at Stanford University.

Before the Dobbs decision, RENEW was taking embryos from every state except Louisiana. Since then, officials there say, RENEW will accept embryos without question from only seven states: California, Connecticut, Maryland, Massachusetts, Minnesota, Illinois, and Nevada. All other states require a case-by-case review.

RENEW officials say they don’t want to violate the law in another state; there’s also a question of whether an embryo donor from outside California could be liable for violating their home state’s laws. It’s had an impact.

“The volume of embryos donated to research has been reduced significantly” since Dobbs, says Liesl Nel-Themaat, IVF laboratory director for Stanford Medicine Fertility and Reproductive Health. “And that means we have less inventory to provide to scientists that are requesting embryos for research.”

Stanford’s careful legal route stems from the patchwork of laws and uncertainty since the Dobbs decision. Legislators in Kansas and other states have considered legislation that would make destroying embryos illegal. And in Tennessee, a recording obtained by ProPublica featured an antiabortion activist telling Republican lawmakers last year that they should wait two to three years before talking about “IVF, and how to regulate it in a more ethical way.”

In a statement to The Washington Post, Lila Rose, founder and president of the antiabortion organization Live Action, said: “Children are a gift. Tragically, IVF turns them into a product to be created, sold, and destroyed.” She added: “At the moment of fertilization, a unique and genetically distinct human life comes into existence. . . . Everyone who cares about defending the dignity of human life should be deeply concerned about the practice of IVF and oppose this unethical practice.”

But Tipton, who was sounding alarm bells last year, says he feels better today. He attributes that in part to the 2022 elections when voters in states such as Kansas and Kentucky rejected antiabortion measures, which in his view suggests a “dwindling appetite” for the more extreme personhood laws that define life at the time of conception and potentially implicate the embryos created through IVF.

For now, “every patient, everywhere in the country has full dispositional authority over their reproductive tissues,” Tipton says, except in Louisiana, where embryos have had personhood status since 1986.

Some lawmakers who back personhood measures may not realize the full implications of the proposals, says Kaylen Silverberg, a reproductive endocrinologist and the medical director at Texas Fertility Center in Austin. Silverberg, who said he has cared for lawmakers from both sides of the aisle, also lobbies for ASRM.

During a recent trip to D.C., he spoke with “one of the most conservative members of Congress” who was considering promoting a personhood statute. Silverberg depicted a scenario where an embryologist accidentally drops a dish of embryos and destroys its contents. “Is my embryologist going to be charged with murder, manslaughter?'” he asked the lawmaker, who in turn was “flabbergasted” because he hadn’t realized the measure’s full implications.

FOR PATIENTS, AN EMOTIONAL CHOICE 

For those whose embryos are in storage, the challenges are more than legal.

“Patients go through such an emotional roller coaster, going through infertility treatment, and when it’s been concluded it gives them a lot of peace knowing the embryos will be used to help other people to be able to have children in the future and contribute to scientific research instead of having to discard them,” Nel-Themaat says.

To move forward with fertility treatments, let alone IVF, “takes a massive amount of fortitude,” says Silverberg, who has seen patients mortgage their homes and get extra jobs to pay for the process. And after all that, many people go through multiple failed rounds of IVF and are left without any embryos.

“Then you have someone who has gone through the procedure, maybe they’ve been successful or maybe they have not, and they just don’t have it in them to face any more disappointment. And now they’re faced with the decision of what to do with extra embryos. This is gut-wrenching,” he says. “Lawmakers don’t understand what they’re putting people through.”

Grief is at the center of the intense and complex emotions around embryo disposition, says Emma Basch, a psychologist in D.C. who counsels people struggling with infertility.

“To make a decisive action on what to do with these embryos that they fought so hard to get can feel like a significant loss,” Basch says. That’s been compounded in the past year with many women confronting their belief structures, trying to reconcile feeling that embryos are “my babies” while also being “staunchly pro-choice.”

I had hoped that in writing and reporting this piece, my decision would crystallize. If only it were that easy. Mostly, though, I’ve come to understand why the choice has been so agonizing and why I sometimes feel half-pregnant.

For now, I’ve decided that I’ll pay for at least another year to store my embryos in Maryland. At the same time, I’m grateful that I live in a state where I’ll be able to choose their fate for at least the foreseeable future.

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