In vitro fertilization is still legal, but patients and providers are bracing for long-term legal implications.
When the Dobbs v. Jackson Women’s Health decision by the US Supreme Court was released in June 2022, reversing Roe v. Wade, Mary Lawinger immediately thought about the two embryos she and her husband have in storage. Because from the perspective of someone who believes that life begins at fertilization, those embryos are alive.
“It’s not talked about [because] people don’t understand the ins and outs of IVF [in vitro fertilization] and freezing and discarding embryos,” Lawinger says. “I can’t imagine anti-abortionists not going after that.”
Dr. Bala Bhagavath, medical director at UW Health’s Generations Fertility Care clinic, says Lawinger wasn’t alone. He heard from several patients who were concerned about “how far-reaching [Dobbs] is going to be and how it is going to affect storage of the embryos and making embryos, all of that.”
“They didn’t know what it meant,” Bhagavath says. “From the [May 2022 leak of a draft of the Dobbs decision], we already knew that it was going to be state-by-state. We didn’t know, for our state, exactly how it [was] going to pan out.”
Christie Olsen, a nurse practitioner and founder of Forward Fertility, works closely with egg donors and gestational carriers. When the ruling leaked, her mind turned immediately to how the decision would affect pregnant people. Olsen guides patients from the beginning of treatment, through fertility and postpartum, so she knows first-hand how often these treatments result in pregnancy complications.
“Abortion is something we’ve always talked about. With people getting pregnant, it’s a topic that they need to think about how they feel up front,” Olsen says. “When the Dobbs decision came through, I mean, my email, phone and texts were just blowing up… It, to me, illustrates how central this topic is to all people.”
Aside from cases of pregnancy complications, IVF and other fertility procedures have not been directly affected by Wisconsin’s abortion law, for now. But with its erosion of bodily autonomy and prioritization of embryos over parental decision-making, Dobbs has opened the door to that possibility. For many patients putting thousands of dollars and their bodies on the line, that risk is something they’re not willing to take in a purple state.
“One of the first things I would say that happened, kind of right away—I’ve seen really clear evidence of this—is that many of the clients that I was just starting to work with and they had not created embryos yet, chose to create embryos in states that were ‘blue.’” Olsen says. “And that means not making embryos in Wisconsin.”
The roller coaster
Lawinger is different from many IVF patients, but her journey highlights the complexity and unpredictability of fertility treatment, and the ways Dobbs could interfere.
She was only 27 when she first started IVF, whereas most patients are in their mid-30s to early 40s. She underwent IVF—which is the last resort in fertility treatment—at such a young age because she has polycystic ovarian syndrome (PCOS), a condition that affects the ovaries and ovulation. After trying other fertility treatments, Lawinger and her husband (who asked not to be named in this story) began their first IVF cycle.
The first step involved Lawinger receiving two to four injections per day for 15 days in order to induce ovulation. Once that was completed, Lawinger underwent surgery to extract as many eggs as possible. But because of her condition, even this first step was risky.
“I was a very complicated IVF patient,” Lawinger says. “One, because I’m so young. And two, I haven’t ovulated. I have almost all of my eggs. Because I have so many, it became really tricky and dangerous because, obviously, if too many ovulate, then my ovaries would explode.”
Plus, this was at the height of the COVID-19 pandemic. The surgery would not go forward if Lawinger contracted the virus, in which case she would have to undergo another series of very expensive shots. The couple did have to leave the house every day to get an ultrasound to measure Lawinger’s follicles to determine how much medication she would receive the next day. But other than those trips to the doctor’s office, Lawinger and her husband “were in intense isolation.”
“As most people were, but extra-intense,” she says. “We literally weren’t leaving, even if we were masked. We were just in our condo.”
The surgery extracted a whopping 50 eggs, “which is unheard of, but expected given my age and my really unique makeup,” Lawinger says. “We were so ecstatic.”
But the next day, their journey took another turn.
“I woke up the next morning and got a phone call from my doctor and she was like, ‘Oh my gosh, we sent you to surgery too soon. We should have waited another day. Almost none of your eggs made it overnight in the lab,’” Lawinger recalls.
Overnight they had gone from 50 eggs to three. “On a wing and a prayer,” as she puts it, Lawinger’s eggs were left overnight in petri dishes to mature and then combined with her husband’s sperm the next day. Some of those eggs that seemed nonviable did fertilize, so they went from three eggs, to 17 embryos. Of those, only three were viable.
“Every day was different. We were ecstatic about the surgery. And then, oh my God, we lost all of our eggs, and now oh my God now we’re back up to 20 embryos. All of that happened in consecutive days,” Lawinger says. “It was a rollercoaster ride.”
One of those embryos is now their son, who Lawinger carried to term without complications. The other two are in storage in Minnesota.
Lawinger’s rollercoaster ride through IVF illustrates the unpredictability of the process. While Lawinger has only two embryos in storage, there’s no guarantee she will be able to get pregnant with them. And there’s no way of knowing how many embryos she would have if she did another round of IVF. That unpredictability, along with the shifting legal landscape, raises some big questions for people like her with embryos in storage.
“I don’t want to be in a position where I have four or five embryos in a locker and need to carry them or donate them or do something that I don’t feel comfortable doing,” Lawinger says. “So that does give me a lot of pause.”
Because abortion laws are now on a state-by-state basis, Bhagavath, of UW Health’s fertility clinic, says that his patients are concerned about what it could mean in the most practical sense.
“There were panicked calls from patients, regarding many things,” Bhagavath says. “‘My embryos are stored here in Wisconsin, so, what does it mean?’ ‘Am I allowed to transfer the embryos to a different state?’ There are patients calling who are concerned because their embryos were stored in a long-term storage facility. ‘When I want to transfer my embryos, would I still be able to do it? Or do I have to go to a different state to continue my management?’”
For now, Bhagavath says, “at least in Wisconsin, there is no immediate worry regarding infertility management and treatment of patients.” But that is not guaranteed going forward. A change in state law could throw the whole industry into flux.
If Wisconsin’s pre-Civil War abortion law is allowed to stand, it could have long-term implications for the fertility industry and for the next generation of OB-GYN specialists. Medical residents are required to undergo training in abortion care, but with Wisconsin’s abortion law, medical schools are working with facilities in Illinois to provide that training.
“Why would people want to do the residency here?” Olsen says. “It’s already hard to be a resident, [and] now you have to travel to another state to finish your training? I think the long-term effects will be a shift into more conservative healthcare in our state.”
In the meantime, Lawinger and her husband are moving forward with their family. They plan on trying to impregnate Lawinger with one of their embryos this summer, with the same clinic that extracted her eggs and impregnated Lawinger with their first child, in Chicago.