Within dozens of states’ new post-Roe abortion bans is language codifying into law the answer to a question people have debated for as long as we’ve existed: When is a human being formed?
Lawmakers in many states, including Kentucky, have decided that happens the moment egg meets sperm.
"’Unborn human being’ means an individual living member of the species homo sapiens throughout the entire embryonic and fetal stages of the unborn child from fertilization to full gestation and childbirth,” Kentucky’s abortion ban reads. The trigger law went into effect June 24, after the United States Supreme Court struck down Roe v. Wade, but is currently barred from enforcement due to an ongoing lawsuit.
Kentucky doctors who disrupt the viability of an embryo inside a pregnant person could face felony charges now. But, thanks to relatively recent advances in reproductive science, embryos don’t just exist inside people — there are hundreds of thousands of embryos stored in vitro, or outside the body, in laboratories.
Since 1978, in vitro fertilization, or IVF, has helped millions of people who struggle to conceive children through sexual intercourse. But the language of new abortion bans is raising questions about the handling of in vitro embryos, and casts a shadow of uncertainty on the future of IVF.
IVF in action
Inside the Kentucky Fertility Institute in Louisville, Dr. Robert Hunter points through a window into a lab where Nobel-Prize-winning science happens daily.
“You can see the lab bench,” the OB-GYN said, pointing to two stations set up with microscopes and other equipment.
It’s there that staff perform IVF by putting together patients’ sperm and eggs to create embryos. Later, the doctors and patient will choose at least one viable, healthy embryo to be implanted in the uterus. According to the Centers for Disease Control and Prevention, about 2% of the babies born each year in the U.S. are conceived through IVF or similar assisted reproductive technology, also known as ART.
In a room down the hall, about a dozen short metal “dewars” or tanks are lined up, each housing hundreds of embryos frozen in liquid nitrogen.
“These are our patients’ future children,” Hunter said.
But now there are big questions looming about how clinics may be asked to handle this biological material, given states’ newfound ability to control abortion access.
Kentucky’s abortion law only protects embryos inside a person’s body. It doesn’t explicitly bestow rights to embryos preserved in a lab. But the language about when life begins has Hunter and his patients worried about the future of IVF, since making and discarding extra embryos is part of the process.
“There are always extra embryos,” Hunter said. “With IVF, that is part of what makes it so effective.”
Why the extra embryos?
Most patients have clinics create more embryos than they plan to use. This increases the chances of having at least one that’s viable, and limits the rounds of IVF patients endure. Each round is physically and emotionally grueling and can cost up to $20,000.
Another common reason patients want extra embryos is to make sure they don’t pass on genetic diseases to their children.
In the week following the Dobbs v. Jackson Women’s Health Center decision, Hunter said two couples came to the clinic seeking IVF because each partner carries cystic fibrosis, a difficult lifelong respiratory disorder.
Hunter will use IVF to create multiple embryos, test each one for cystic fibrosis and only transfer an embryo without the related mutation to the uterus.
“But what about the other embryos?” he asked.
Usually patients ask Hunter to discard them. Patients also ask the doctor to discard their extra embryos when they’re done having children.
But Hunter is worried some conservative Christian lawmakers who see embryos as people may eventually take action to prevent him from doing that.
“The concern would be that someone forces us to transfer embryos [to the uterus] against our will and against our patients’ will,” he said.
Even without legislation dedicated to IVF, Kentucky’s existing abortion ban is already having an impact on his patients. While Hunter’s clients are mostly concerned with getting and staying pregnant, sometimes abortion is necessary.
“As with any pregnancy, sometimes things go wrong,” he said.
He said he’s in touch with one patient who was forced to travel out of state to end a non-viable pregnancy when Kentucky’s abortion bans briefly went into effect last month.
“The threat here is to a woman’s autonomy over her own body,” he said.
‘That’s a human life’
Crofton Republican Sen. Whitney Westerfield is an outspoken opponent of abortion rights. He sponsored measures that limit abortion, which he prefers to call “measures to protect unborn life.”
To Westerfield, embryos are people, whether they’re in the uterus or in a petri dish.
“That’s a human life…I don’t like the idea of discarding any of those human lives,” Westerfield said.
“I believe the Bible. The Bible said that God made us in his image, and that he knew us before he formed us in our mother’s womb.”
Westerfield said he doesn’t have plans to try to regulate IVF. He’s a proponent of the procedure, and has personal experience with the process.
“Our son is a product of IVF,” Westerfield said. “He’s an embryo that we adopted.”
Embryo “adoption” is a term used by many Christian and anti-abortion organizations to describe the implanting of donated embryos.
Westerfield said he and his wife “adopted” four embryos from other couples, one of which survived the process and grew to become his youngest child. That’s what Westerfield said he wants for all extra embryos.
“I wish that those could find a place to be adopted and have a chance to grow and be loved,” he said.
But while many conservative Republicans like Westerfield, hold spiritual beliefs about the humanity of in vitro embryos, those beliefs haven't translated to policy, so far. National news reports show even anti-abortion lawmakers are hesitant to interfere with fertility treatments. For example, lawmakers in Louisiana decided not to move forward on an anti-abortion bill that would have criminalized some IVF procedures.
Thirteen states have new abortion bans post-Roe, and so far none of them prevent doctors from discarding embryos, according to the American Society for Reproductive Medicine.
IVF isn’t front and center for Kentucky’s anti-abortion advocacy groups either. Addia Wuchner with Kentucky Right To Life agrees with Westerfield that in vitro embryos are distinct human lives, but IVF practices aren’t on her radar.
“It’s just not really where our focus is right now,” she told WFPL News.
Wuchner calls the concerns about IVF a “scare tactic” from abortion-rights activists
But some patients aren’t taking any chances. Dr. Hunter said he’s already heard from one couple that wants to move their embryos out of state, just in case.
