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Episode 62 Transcript

Ep 62 – The Impact of Roe V Wade On the Fertility Industry

Eloise Drane
Hey there. Welcome back to Fertility Cafe. I’m your host Eloise Drane. Welcome to episode 62 of Fertility Cafe. In this episode, we’ll be discussing the recent overturning of Roe v Wade and the implications for the fertility industry. First, let’s start with what happened. On June 24 2022, the US Supreme Court officially reversed Roe vs. Wade. The decisions means that the constitutional right to abortion, which existed for over 50 years no longer exists. Protesters and concern citizens worry about many potential issues stemming from this decision, including the implication that a woman does not have full autonomy to make decisions involving her own body and the issue surrounding sexual assault and incest and the potential pregnancies that may result in such circumstances. But beyond these heated subjects, which are beyond the scope of what we’ll be discussing today, a far reaching implications for the fertility industry. So why does fertility health care need protection? Well, according to fertility within reach, fertility, health care may be at risk depending on the language used in bills or laws passed after the reversal of Roe v Wade. assisted reproductive technology, such as in vitro fertilization involves fertilization of eggs in a lab to make embryos for transfer to the uterus to help people conceive. If a bill or law defines an embryo as a person, this can create significant issues for physicians and patients, since most embryos are not biologically capable of becoming a healthy baby. Given the embryos legal status of a person can potentially make fertility care inaccessible. Without access to safe and effective IVF, many of these families would not exist today. 11% of American women and 9% of American men of reproductive age experienced fertility challenges. IVF is one of the safest and most effective ways to treat infertility. Personhood laws will be a significant barrier to many people trying to have a family. So how can people protect access to fertility treatments? Well, to ensure fertility treatments according to fertility within reach, remain available. Patients and Providers need to be protected from criminal civil action should an embryo or pregnancy not result in a live birth. Legislative language related to reproductive health needs to protect the patient and provider when an embryo or fetus does not survive genetic testing, a patient experiences the loss of pregnancy including stillborn or ectopic pregnancy, a patient makes decisions pertaining to the usage of their embryos. A healthcare agent, proxy, surrogate, guardian is acting on behalf of a pregnant person. A practitioner is providing life saving care to a pregnant person, and a practitioner is providing routine medical care for an abnormal pregnancy, including ending a pregnancy. For more details on how to protect fertility treatment and building families, postdocs decision, please check out fertility within reach. In the meantime, let me introduce a repeat guest on today’s show Chelsea Caldwell, Director of Legal Services for family inceptions. Thanks for joining me, I appreciate it. Would you mind sharing about yourself and for all of our new listeners that don’t know who you are?

Chelsea Caldwell
Absolutely. I’m happy to be here and thank you so much for having me. So I’m a family law attorney and I’ve dedicated my law practice to assisted reproductive technologies or ART, my founding partner of my law firm Midwest fertility Law Group and together with my two partners, Tim Plessinger, and Meg Lauterbur. Collectively, we’re licensed in six states, almost seven across the Midwest and South. So we focus exclusively on ART and help clients worldwide seeking to build their families through methods such as surrogacy, gamete, donation and embryo donation. And then additionally, I’m very honored to serve as the Director of Legal Services for family inceptions, which I love and super fortunate to get to work with some amazing people there, including yourself.

Eloise Drane
Oh, thank you. I appreciate that. Okay, so now let’s talk about how Roe v. Wade affects third party reproduction. And I know that there are times during assisted reproduction when ending a pregnancy may be seen as medically prudent and other times when it may be seen as elective. Let’s talk about each one of these scenarios. So when is ending a pregnancy medically necessary?

Chelsea Caldwell
So this is ultimately a medical question but generally when we think about when it may be medically necessary to end a pregnancy, usually this is going to be a situation where there’s an imminent serious threat to the health or life of the mother. And as it pertains to ART and services, specifically, where there’s an imminent serious threat to the health or life of the gestational carrier, or surrogate. So in these situations, a doctor needs to use reasonable judgment based upon their expertise and experience to determine if there is an imminent serious threat to the surrogate or pregnant woman’s health or life.

Eloise Drane
So will the overturning of Roe v Wade affect these situations?

Chelsea Caldwell
So I’ll start by saying that ultimately this is going to be matter of state law state by state and determining if that particular state has passed a law banning abortion. For the most part, every statute is different in terms of specifically how it either includes as an exception, or defines when an abortion is appropriate or necessary to save the health or life of the mother. In general, if there is an imminent significant threat to the mother or surrogates physical health, then most likely an abortion is going to be legal under that state’s law. Some state bans have exceptions for saving the life of the mother as well as circumstances of rape and incest. And then there are some state bands that are a near total ban and have no exceptions for rape or incest. Instead, they only include a narrow exception to protect the life of the mother, or to prevent serious risk of substantial and irreversible harm to the mother’s health. Currently, I’m not aware of any state where there’s no exception to save the life of the mother. But to get back to the question of whether the overturning of Roe by Dobbs will affect a situation where ending a pregnancy is medically necessary. think realistically speaking, it’s too early to tell for sure. And while we have these exceptions provided in the statutes that yes, we’re able to legally into pregnancy if it’s medically necessary to do so, if the mother or surrogates life or health is at risk, and a doctor has determined that, it’s still hard to get a good read on how much scrutiny that decision and determination will receive, which in the end can have an effect on these situations, even if these state laws do provide these exceptions.

Eloise Drane
So when is ending a pregnancy elective?
again, a medical question, but generally when it may be elective to into pregnancy, usually this is going to be a situation any situation other than where there is an imminent serious threat to the health or life of the mother or surrogate usually is applied to ART cases. These are circumstances where the fetus is determined to have a rare genetic or developmental disorder or abnormality, which ultimately compromises the fetuses quality of life or life expectancy.

Eloise Drane
So will the overturning of Roe v Wade affect these situations too?
Yes, absolutely. It has and will continue to in states the pass laws of banning abortion that are a near total ban that don’t provide many exceptions and that ban abortion very early on, such as with the detection of a heartbeat, there simply isn’t enough time to discover if a disorder or abnormality is present. And when it’s discovered in states with these statutes terminating the pregnancy would no longer be a legal option in that state. On this note, one question we’ve been asked is if the fetus is no longer alive, and there’s a miscarriage, but it needs to be removed, can that be legally done in states that have abortion bans. Again, we have to defer to the specific state law, but most likely this is allowed, it’s not going to be considered an abortion because in most of the statutes, the definition of abortion is restricted to terminating a live pregnancy or removing a live fetus. Something however, that’s not entirely clear under some of these laws is selective reduction in a multiple pregnancy. If a woman is pregnant with more than one fetus, is it the case where the number of multiples a mother or surrogate is pregnant with is a threat to her health or live by carrying those multiples, qualifying it as medically necessary to end the pregnancy? Or is it the case where the number of multiples is affecting the health or survivability of any of the other fetuses? If we’re talking about the ladder where the health of any of the other fetuses is in danger, is that then considered elective? Is a selective reduction legal in that circumstance? Is it even an abortion? And what I mean by that is does the state statute address and define whether an abortion is technically the termination of the pregnancy as a whole versus removing a live fetus that’s more unclear and something that the state statutes some of them are not clearly addressing?

Eloise Drane
Well, I think the problem with the whole Roe v Wade is that when it was overturned, nobody really thought about the specifics, they did an overview a highlight of we don’t want this done without release, thinking specifically about how it’s going to affect everybody. Before as my intro, I started reading something that I had received from fertility within reach regarding protecting fertility treatment and building families. And I keep thinking about a case that we had in 14 years. That’s the only time ever in the history of my agency that we ever had a surrogate had to terminate a pregnancy. And wondering what would have happened in this situation where we had a surrogate, she ended up getting pregnant, Singleton, pregnancy, everything looked great, it was tested embryos, and she went to her 13 week visit. And they did an ultrasound and come to find out the baby was being born with no brain, the intestines were being developed outside of the body. Now the baby still had a heartbeat. But because the intestines were outside of the body, and obviously the baby didn’t have a brain, they decided to terminate the pregnancy, but they decided more so to terminate the pregnancy because the doctors felt that the surrogates life was at risk, because of the organs being born outside of the body. And it was a big to do because by the time they did the ultrasound, got opinions and all kinds of stuff. She was already I think, at that point 15 weeks pregnant. So unfortunately, politicians don’t actually really think about all of the details of what actually happens in a person’s life. It’s just the you know, this superficial thing that they think everybody lives in the same bucket in the same circle. Yeah, and it’s ridiculous. So Sorry, go on a tangent but but obviously, this kind of stuff, it just irritates the heck out of me. So okay, now, let me ask you a different question. What happens if the intended parents in the surrogate disagree about whether or not the pregnancy should be terminated?

Chelsea Caldwell
So this really hasn’t changed per se because of Roe being overturned? First, it’s worth mentioning that in any surrogacy arrangement, there needs to be a signed contract called a gestational surrogacy agreement that’s executed between the intended parents and the surrogate. And this contract outlines each party’s intentions and expectations and proceeding forward with the surrogacy arrangement. And among a lot of other items, this contract absolutely should address the issue of termination of pregnancy and selective reduction as almost a default provision. We include in those contracts that if the surrogates health or life is at risk, then she makes the decision with regards to terminating the pregnancy. And in all other circumstances, it should address the party’s intent and agreement in terms of when they would be comfortable requesting or undergoing a termination of pregnancy. And on that note, regardless of the law, and what’s actually included in the contract, it’s so important that the parties are on the same page from the get go and share the same belief systems with regards to this topic. And it’s strongly recommended that the parties discuss this topic beforehand and are matched based on that. And that’s something that good agencies are going to pay a lot of attention to in matching intended parents and surrogates. However, if we’re in a circumstance after the contract is signed, the surrogate is pregnant, and then the intended parents and surrogate disagree about whether to terminate the pregnancy. What happens is that still even after Roe being overturned, a surrogate cannot be forced to terminate a pregnancy if she chooses not to. This was the case pre jobs and still remains the case. In that circumstance. You can’t force her to terminate, but if she chooses not to and breaches the contract, then you’d be looking at a breach of contract claim. Still, though, that’s not a situation where anybody wants to be, we include in the contract that that would definitely be a breach and provide a theoretical remedy and hope that’s enough of a deterrent that she follows the contract. But it’s hard to say what the chances of success for a breach of contract claim in that circumstance would be especially given the political and philosophical realities of the opinions of many people as it pertains to terminating a pregnancy. But having said that, and everything we’ve discussed so far, Dobbs and overturn of Roe should still not be a deterrent to proceed with surrogacy or even proceed with surrogacy and states with restrictive laws banning abortions. A couple of points that I want to make pertaining to that are that first and foremost, as applied to surrogacy, the need to terminate a pregnancy and termination requests are extremely rare. As you pointed out earlier, you’ve only had one and your how many years? Yeah, exactly. And even more so now with the advances and testing of embryos, such as PGD testing, we’re able to detect potential abnormalities ahead of time and transfer only good quality embryos, which also lessens the chance of a need to terminate the pregnancy. Second, if the need does arise, if there is a request to terminate we’re drafting in our contracts to provide that if the surrogate lives in a state where abortion is not permitted, and if it’s not a legal option for her to terminate the pregnancy in that state, that she agrees to travel to another state in order to legally terminate the pregnancy and comply with their obligations under the contract, and the costs of the travel of that travel are paid by the intended parents. And lastly, I’ll say in terms of risk analysis, pre Dobbs and post Dobbs, pre Dobbs, we had the risk of the surrogate refusing not to terminate post Dobbs, we still have that we still have the risk of the surrogate refusing not to terminate or refusing to travel to terminate. In other words, the risk is still there, and it’s still remains a risk.

Eloise Drane
So there are some of the more common and clearly connected situations intended parents may encounter. But are there other situations that the overturning of Roe v Wade may affect? For example, how does the decision impact egg donation and freezing eggs if at all? And how does it affect freezing embryos?

Chelsea Caldwell
Sure, so nothing in the Dom’s decision is going to directly impact disposition and control of Crowl preserved eggs or embryos or gamete donation, if we assume the principle holding of Dobbs is that there is no constitutional right to an abortion. That in itself does not have any impact on what is the character of a frozen embryo? Or what can people do with their frozen eggs or embryos. And with that being said, there’s not no reason to be concerned that something may happen in the future that could impact that. But for the time being, there’s nothing that is likely going to impact it directly. As a result of Roe being overturned. We have to remember that and distinguish that Roe deals with fetuses. Dobbs deals with fetuses, an egg is not a fetus, and an embryo is not a fetus. Some concern, though, over this topic, specifically is with statutes that prohibit abortion and also define the word fertilization or state that life begins at conception. So the concern here is will it affect IVF? Will it affect frozen embryos or eggs or if they need to be destroyed? Is that then considered an abortion? And I think for the large part, what you’ll find is that many of these statutes that do define fertilization or conception, as the moment when the sperm fertilizes an egg, which as we know, if we’re talking about IVF, is done in a lab. Most of the relevant wording of the statutes that use those defined terms of fertilization or conception, are used in conjunction with a defined term of an abortion, which more likely than not, is defined by terminating an already established pregnancy. So there’s no automatic connection between personhood legislation and the state laws that have or will ban abortion. And I don’t believe there’s any personhood legislation that has been passed anywhere in any other state, other than Louisiana that deals with in vitro embryos. But again, there’s not no reason for concern. And I think the important thing is to be proactive and support efforts to protect fertility health care, because we don’t want to open the door to personhood legislation, if at all possible.

Eloise Drane
Yeah. And that’s why the beginning of the episode, I read a handout that fertility within reach is shared about why does fertility health care need protection and it’s specifically pointed out personhood laws, which will be a significant barrier to many people trying to have a family so that’s going to be a huge thing to pay attention to and you know, if it is something that each state is trying to implement, this is where everybody needs to get together and start raising their voices because that is going to impact you know, life as we know it, especially in the fertility industry, for sure. So, um, so, like with many situations in the fertility industry, nothing is black and white. Nothing is crystal clear. And as the industry responds to the Supreme Court decision and adapts to handle these situations, we’ll be keeping a close eye on how the law in the industry are affecting, you know, intended parents, surrogates, donors, even the professional so this is a let’s watch and see type of thing. Right. Thank you Chelsea for being on the show with me today. I really appreciate your time.

Chelsea Caldwell
Thank you. Thank you for having me.

Eloise Drane
Thank you so much for listening. If you found this episode helpful, please rate Fertility Cafe on your favorite listening platform and share this episode with anyone you think could benefit from hearing it. Thank you so much for joining me today. Until next time, remember, love has no limits. Neither should parenthood.

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