Abortion restrictions in Georgia cast doubt on the future of fertility treatments

by Ross Williams, Georgia Recorders [This article first appeared in the Georgia Recorder, republished with permission]

November 22, 2022

On Friday, Zach Binney, an assistant professor at Emory University’s Oxford College, brought his work supplies to the temple, where his six-month-old son Jacob attends daycare. He spent the day working in the temple library instead of his office so he could spend 20 minutes with the baby during Shabbat midday services.

“I love this kid,” he said. “I’m so, so excited that we could finally have him. And I’m happy for my wife too. This was one of her lifelong dreams. I wanted to do everything possible to make that possible for them and for us. It took a lot longer than we expected, but we made it. And I couldn’t be happier.”

Little Jacob was born after his parents had struggled with infertility for five years.

“They’ve done just about everything under the sun you can think of and they’ve never really found much wrong with my wife,” Binney said. “My tests – I’m very open about that, I think it’s really important to talk about it, especially for men – my results were always, if you graded them, they were about a 3 or 3. So all the doctors always told me, you should of course be able to have children, we don’t see anything here that would prohibit it, but we’ve tried again and again and failed again and again.

Binney and his wife Amy turned to in vitro fertilization, or IVF, a procedure in which an egg is removed from a woman’s body, fertilized in a laboratory, and then returned.

In Binney’s case, three rounds of egg retrieval yielded only five viable embryos. The first four failed, including a couple of miscarriages. Binney said the couple felt like they were holding their breath for weeks, hoping for a healthy pregnancy but constantly fearing the worst. By the time doctors implanted the last embryo, Binney had almost given up hope.

“I was totally resigned. I thought we’re just not destined, it’s just not in our cards,” he said. “We started talking a little vaguely about adoption or something like that. We definitely considered alternative plans until he grew. He wasn’t even a particularly well-graded embryo, but he’s the one that came out. And we couldn’t be happier.”

Georgia welcomed just over 126,000 newborns in 2019, 1,915 or 1.5% of whom were born using assisted reproductive technology, according to data from the Centers for Disease Control and Prevention. Assisted reproductive technology includes fertility treatment in which eggs or embryos are treated to bring about pregnancy, and IVF is the most common type. Nationwide, 2.1% of infants born in 2019 were from assisted technology births.

But the end of the Roe vs. Wade era has rocked the industry, and with Georgia’s 2019 abortion law now under challenge, IVF experts and advocates are worried about the future.

Georgia’s abortion law defines an unborn child as “a member of the species Homo sapiens at any stage of development, carried in the womb”. The fertilized eggs used in IVF are stored outside of the body, which she appears to be exempt from, but Barbara Collura, president and CEO of RESOLVE: The National Infertility Association, said she is not confident the law will protect patients in the state.

“Georgia has been a difficult state for us for many years in terms of how legislators have tried over the years to potentially regulate people’s access to IVF,” she said. “This isn’t our first rodeo in Georgia, but it’s a whole new and different day that Dobbs and Roe v. be knocked over.”

During IVF, doctors collect and fertilize multiple eggs, resulting in multiple viable embryos that are usually frozen after about five days, before they are visible to the naked eye.

“We don’t know enough about the human embryo to know exactly which of these embryos in this petri dish is going to produce a baby,” Collura said. “So the goal is to create as many embryos as possible and transfer those embryos one by one into the woman’s uterus in hopes that she will conceive. If not, they have another embryo to try and so on.”

If a patient has leftover embryos after building their family, they can choose to give them to another couple hoping for conception, donate them for scientific research, or have them thawed and destroyed.

This creates an ethical dilemma for some anti-abortion activists who believe that life begins at the moment of conception.

“You’re going to have people who are going to say, you can’t have an abortion, but you can do IVF, people who are going to say, you can’t have an abortion, and you can’t do IVF either, because these are embryos,” Collura said . “So how that plays out in each state, in each state, is unclear. I don’t know today how that will play out and what will happen for horse trading, but Georgia is certainly a state that we will be paying very close attention to.”

Collura stressed that Georgians seeking IVF or who have leftover embryos have the same rights as before Dobbs, but she fears that could change as early as next year.

In his ruling overturning portions of the state’s 2019 abortion law, Fulton County Superior Court Judge Robert CI McBurney called the provisions “simply unconstitutional” because they were passed in 2019 and before the US Supreme Court’s ruling. Court in Dobbs v. Jackson Women’s Health Center ended the federal protections against abortion access.

“Under Dobbs, it may one day become Georgia law, but only after our legislature has determined whether the rights of unborn children should, in the keen light of the public attention that will no doubt and duly participate in so important and momentous a debate.” Restriction on women justifies rights to bodily autonomy and privacy,” McBurney wrote in his ruling.

When it was passed, Georgia’s abortion law was one of the strictest in the country, but several states have now outright banned the procedure. In vitro advocates fear that sending the issue back to the legislature could lead to a measure extending protections for unborn children in the womb to include fertilized eggs in a freezer.

“Once you have a situation where state legislatures might regulate abortion and then embryos, it impacts our community of people trying to build their families,” Collura said. “So we’re going to be watching Georgia very closely and certainly have concerns about what could possibly happen and we have to be ready.”

According to the Atlanta Journal-Constitution last month, at a campaign halt last month, a person with a hidden microphone asked Gov. Brian Kemp if he would support “a nationwide ban on the destruction of embryos.”

In the leaked audio, Kemp said he liked the idea, but also noted that the state’s abortion law passed with just one vote. Kemp’s campaign said it would not support such a proposal.

Georgia Right to Life, an anti-abortion lobby group, expresses mixed feelings on its position statement page.

“While GRTL empathizes with the many couples who are turning to IVF as a treatment for infertility, we caution that some commonly used procedures associated with this practice can cause fetal deaths. Any IVF procedure that results in the destruction of human life at any stage of development will be rejected by GRTL.”

dr Valerie Libby is a fertility specialist at Shady Grove Fertility in Sandy Springs, one of the largest fertility clinics in the country. A day at the practice includes egg retrieval, intrauterine insemination and embryo transfer, monitoring treatment response, and meeting patients to discuss treatment plans. More recently, these talks have included other questions about the future of state law.

“We are assessing the current legal environment and potential changes that may occur, and educating our patients about the possibility of changes in the law,” she said. “On rare occasions, patients choose not to fertilize eggs, so they basically just store the eggs and sperm separately until they’re ready to use them as embryos, and then fertilize a few at a time to reduce numbers.” of embryos they have stored.”

It’s not clear if a statewide ban on embryo destruction would prevent Georgia embryos from being disposed of elsewhere.

“It’s a personal choice, and if they don’t feel comfortable discarding their embryos or donating them to science or other families in need of embryos, then they still have to pay for embryo storage. If a patient wanted to discard their embryo and Georgia law did not allow embryo disposal, we would explore other options, including shipping embryos to clinics in states where it is legal,” Libby said.

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