The push for embryo rights in state legislatures worries IVF patients and doctors

For seven years, Jacqueline Brock endured grueling fertility treatments – and all of the emotion that came with them.

“I had to stop going to outings with our friends because they’d bring their kids or talk about their kids, and I would just cry,” she said. “I didn't go to a lot of baby showers and things because I couldn't physically handle it.”

Last year, Brock, who lives in West Des Moines, Iowa, with her husband, James, underwent a third round of in vitro fertilization, or IVF. It produced two embryos. She had one implanted. This time it worked, resulting in one of the best moments of her life.

“I got a call from our fertility clinic, and all of the nurses and our doctors, they're on the phone. And they all yelled out we were pregnant,” she said.

Brock’s daughter, Eloise, was born in January.

But her joy quickly turned to frustration when a month later, the Alabama Supreme Court ruled that embryos created through IVF should be considered children.

Brock felt for the women who paused their IVF cycles during the initial confusion in the wake of the ruling. And it made Brock concerned about the couple’s remaining embryo. They want a second child.

The Alabama ruling arrived amid a wave of attempts to pass similar laws in state legislatures.

During the most recent legislative session in 13 states (including Iowa), lawmakers introduced bills that could give some of the same rights to embryos and fetuses that generally protect a person, according to an analysis by the Guttmacher Institute, a non-profit that supports abortion rights.

Though Alabama Gov. Kay Ivey signed a law granting protections to IVF a month after the court ruling, the precarious legal landscape worries patients like Brock and her husband.

“We were talking about, ‘Do we need to get a lawyer to figure out what to do with our embryo, or do we need to move our embryo to another state so that it's safe?’” Brock said.

‘I just never really, truly believed that that would happen’

None of this group of bills passed this year, but policy experts expect similar bills to come up in future legislative sessions. The wave of bills are part of a trend in the anti-abortion movement, said Kimya Forouzan, the principal state policy associate at the Guttmacher Institute, a research group that supports abortion rights.

“Really the greater push has been to really seek to restrict a lot of different types of sexual and reproductive health care. And one of the ways to do that is by establishing personhood in the law,” she said.

For instance, the Iowa House passed a bill that would increase criminal penalties for causing someone to lose a pregnancy without their consent and would change the term “terminates a human pregnancy” to “causes the death of an unborn child.”

Danny Carroll, a lobbyist for the Family Leader, a conservative group, told Iowa lawmakers in February that the shift in language would clearly define life as beginning at conception.

“This bill deals with the protection of that life, and rightly so,” Carroll said. “The term human pregnancy is convenient if you're pursuing a pro-abortion agenda, because you don't have to realize the truth that life begins at the moment of conception, and what we're talking about is an unborn child.”

Kansas legislators discussed in committee a bill that would provide child support for “unborn children” from the date of conception. In Missouri, where abortion is mostly banned, the lawmakers introduced a bill that said “unborn children … are entitled to the same rights, powers, privileges, justice, and protections” as any other person in the state. A state senate bill that established standards on how courts determine custody of an embryo was also introduced.

Indiana lawmakers introduced a bill that would allow pregnant people to claim their fetuses as dependents on their state taxes.

Anti-abortion groups in Nebraska are currently pushing for a ballot initiative that would ban abortions after the first trimester and define “a preborn person at every stage of development” as a person.

At the same time, there is a shifting patchwork of state abortion bans in place that further complicate and cause confusion about reproductive choices. In Iowa, for instance, a decision from the state Supreme Court regarding whether or not the 2023 fetal heartbeat abortion ban should go into effect is expected in June.

These initiatives, along with the Alabama Supreme Court decision and the disruption it caused the state’s IVF clinics, trouble some medical professionals who provide fertility care.

“I just never really, truly believed that that would happen,” Dr. Abby Mancuso, an infertility specialist in Des Moines, Iowa, said of the Alabama decision.

It’s common practice during IVF to create extra embryos in case of abnormalities or other issues, but embryos can easily be damaged, as they were in the case central to the Alabama decision, she said.

When embryos are legally considered children, that could have a detrimental impact on doctors, Mancuso said.

“If you're an embryologist or an institution, and you could be held criminally liable for any damage that occurred to these microscopic cells, that's obviously a concern,” she said.

There’s also the civil liability concern, which puts facilities at risk of being sued for a lot of money and damages.

All of this means that debates over abortion and IVF protections are expected to play a significant role in the upcoming election.

‘It's hard to really write in exceptions’

Proponents of bills that define life as beginning at conception say they want to ensure they are written so they protect IVF and fertility treatments.

Following the Alabama Supreme Court decision, Gov. Kay Ivey signed a law shielding IVF patients and providers from legal liability.

When Iowa Democrats brought up concerns about how a bill that would change “human pregnancy” to “unborn person” could affect IVF in the state during a House debate in March, Republican Rep. Skyler Wheeler, who sponsored the bill, dismissed them as irrelevant and alarmist.

“Sometimes you hear things and you see things, and you just can't wrap your head around the madness,” he said.

Iowa Republican Rep. Zach Dieken defended the bill’s shift in language.

“I do believe that my two-year-old is a person. I believe that my 13-month-old is a person,” he said. “And in November, when my wife gives birth to my third child, because she informed me three days ago she's pregnant. I do believe that person is a person.”

Sarah Wilson, an attorney who specializes in fertility and adoption practices, said the concern over the potential impact of personhood laws is real.

“It's hard to really write in exceptions that are truly going to protect families and IVF and other fertility treatments, while still keeping the position that an embryo is a person,” she said.

Fears of criminal charges

In the meantime, Wilson said it’s added more stress for her clients who are already going through a difficult and complicated process.

“Instead of the hope and excitement that I usually hear from them, they come to me with concern and they're scared,” Wilson said. “They are not sure if their legal parentage will be protected, and if they'll have decisions over their own medical care.”

Some of Wilson’s clients are nervous about what the future might hold for states like Iowa and are talking about pursuing fertility treatment out of state.

Jacqueline Brock and her husband are considering contacting an attorney like Wilson to figure out their options for their remaining embryo. Doctors told Brock she likely can’t use the remaining embryo to carry another pregnancy herself for medical reasons. So, she and her husband are considering other options, like surrogacy.

They’re considering moving their embryo to a neighboring state, so it doesn’t get caught up in any legal gray areas in the future.

“It's really scary to think that we have this embryo, and if we do decide to discard it, we could potentially get criminally charged for doing that,” she said. “And there aren't a lot of options for us with the embryo.”

This story comes from a collaboration between Side Effects Public Media and the Midwest Newsroom — an investigative journalism collaboration including IPR, KCUR 89.3, Nebraska Public Media News, St. Louis Public Radio and NPR.