If the Supreme Court overturns Roe v. Wade this month, as it appears poised to do if Justice Samuel Alito’s recently leaked draft opinion in Dobbs v. Jackson Women’s Health Organization is any indication, abortion may not be the only reproductive care at risk. As Giulia Carbonaro writes for Newsweek, “In a post-Roe world, in vitro fertilization (IVF)—the fertility treatment used by millions of Americans every year—could be in danger.”
And some of those millions of Americans are, of course, LGBTQ people hoping to start families.
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Carbonaro isn’t the first to sound the alarm on IVF. Experts and journalists have been examining the far-reaching consequences of overturning Roe v. Wade since Politico broke the story in early May.
As the Newsweek piece notes, it’s common to fertilize more than one egg to maximize the chances of IVF treatments being successful. Once the person receiving IVF is pregnant, any extra fertilized eggs are usually discarded.
Many of the trigger laws designed to outlaw abortion the moment Roe is overturned in states across the country define life as beginning at fertilization.
As Elizabeth Constance, a doctor at Omaha’s Heartland Center for Reproductive Medicine told The Washington Post in May, “There are concerns about whether there will be repercussions related to embryos that don’t survive in the lab. What about those put in the uterus and don’t implant? That’s all in a gray area.”
“Without the protections of Roe v Wade, it is possible that state lawmakers may feel empowered to create barriers for people to access medical procedures like IVF – which is deeply troubling for LGBTQ+ people and anyone who needs access to IVF to expand their family,” Shelbi Day, Chief Policy Officer at the nonprofit organization Family Equality, tells LGBTQ Nation.
According to KFF, there isn’t reliable data about how many LGBTQ people utilize IVF and other fertility assistance treatments, in part because “studies on family building are often not designed to include LGBTQ respondents’ fertility needs.”
“A significant number of LGBTQ+ families rely on IVF and other assisted reproductive technologies to expand their families,” says Jess Venable-Novak, director of Family Formation at Family Equality. “While we do not know the exact number, we do know that for LGBTQ+ couples planning to grow their families, 40% expect to use assisted reproductive technologies in the years ahead.”
As Cathryn Oakley, an attorney with the Human Rights Campaign, told NBC News earlier this month, “If the law believes that human life begins at conception, that means those embryos in the petri dish are legally people. That would make IVF impossible to really function.”
But Day urges caution. “We need to keep in mind that this is a complex issue, and there are a range of state laws to consider. While it’s important to be aware of the potential impact that Dobbs has on family creation, as of today, Roe v. Wade remains the law of the land and we won’t know the full impact of this decision until the Court issues a final opinion.”
Alito’s draft opinion, which was leaked to Politico last month, showed that the Court has already voted to overturn Roe v. Wade, ending the constitutional protection of the right to an abortion in the U.S. The opinion also suggests that – like the right to an abortion – neither the right to marriage equality (Obergefell v. Hodges) nor the right to privacy in one’s bedroom (Lawrence v. Texas) have “any claim to being deeply rooted in history,” leading many to believe that the Court could overturn those decisions as well and allow states to pass laws to regulate marriage and private, consensual sex acts.