28 June 2022
On Friday 24 June 2022, the US Supreme Court delivered its retrograde decision in the case of Dobbs v Jackson Women’s Health, overturning the 50-year-old precedent (Roe v Wade 1973) which established abortion rights in the US. This decision, whilst not unexpected following a leaked draft legal ruling last month, matters because it marks a serious step backwards for rights to choose pregnancy and motherhood and bodily autonomy for millions of US women. This legal ruling also matters from a wider reproductive, medical, scientific, economic, health and social care perspective. It creates uncertainty about the future of assisted reproductive technologies (‘ART’) including fertility preservation, IVF and surrogacy in some US states. Moreover, it raises questions about future deployment of scientific and medical research into powerful gene editing technology which has the potential to combat and cure disease, overcome infertility and transform the health and futures of children, adults, families.
Overturning Roe v Wade
The US Supreme Court’s decision to overturn Roe v Wade restricts and creates uncertainty about women’s access to safe abortion and urgent pregnancy related medical care in parts of the US (e.g. treatment for ectopic pregnancy and obstetric complications). For now, it does not prevent women from crossing state-lines to access these treatments in other US states where they remain lawful (although states could potentially try to change this in future). However, it will cause difficulties and hardship for many US women emotionally, financially and practically. It will hit the poorest and the most vulnerable women hardest. Some women simply will not have the means or ability to travel significant distances for an abortion or urgent pregnancy related medical care and they will be left in even more vulnerable situations, facing unwanted pregnancies and childcare responsibilities, greater financial and social hardship and more limited options to pursue education and career opportunities. As such, it will undo many decades of progress and hard-won steps towards gender equality in the US.
Fertility treatment, IVF, egg donation, surrogacy and research
The decision to overturn Roe v Wade also enters uncharted territory where fertility treatment, IVF and surrogacy is concerned across some parts of the US. The issue of reproductive rights is now far more complex and nuanced than it was when Roe v Wade was first decided in 1973, some five years before the birth of the world’s first IVF baby Louise Brown in 1978. It now raises fundamental and unsettled questions about when life first begins (i.e. at fertilization of an egg, implantation or at a certain point into a pregnancy) which impacts access to assisted reproductive technology in multiple ways. It now creates uncertainty about egg, sperm and embryo freezing in some US states since not all gametes and embryos will survive the freezing and thawing process. By extension, it calls into question established fertility treatment practices designed to stimulate a woman’s ovaries and maximise egg maturation and collection in one-go for economic and practical reasons creating uncertainty about batches of unused eggs in some parts of the US. It calls into question use of genomic technology to screen embryos for diseases and genetic abnormalities since any decision not to use or discard these could potentially raise untested questions about civil and criminal liability, not just for patients but for fertility clinics and professionals too. It also creates uncertainty about scientific and medical research using embryos to combat and find cures for serious genetic diseases and overcome infertility (including rapidly evolving genome editing technology).
The US Supreme Court’s decision to overturn Roe v Wade is not expected to restrict the delivery of fertility treatment and ability to access surrogacy across all US states. Instead, there will be a decline in states which ban abortion and confer legal protections on embryos and an increase in fertility treatment and surrogacy in pro-choice US states. In short, fertility patients and surrogates in some parts of the US will need to travel greater distances and cross state lines to access fertility treatment and healthcare. Fertility patients, intended parents, surrogates and donors will also have to deploy an even higher level of due diligence and care from the outset in terms of the political landscape and the legalities and logistics associated with family building arrangements.
This evolving picture is also likely to have wider knock-on effects in the case of egg donation and surrogacy practices in the US, which will become clearer over time. As such, intended parents should be prepared for all eventualities including the potential for increased competition for egg donors and surrogates in reproductive friendly US states, longer wait times for available surrogates and donor eggs, heightened complexity and increases in overall costs.
Way forward and specialist fertility law advice
The US has for many years been at the forefront of assisted reproductive technology and associated research. However, the US Supreme Court’s legal ruling overturning Roe v Wade on 24 June 2022 marks a serious and retrograde turning point in reproductive rights and freedom, access to healthcare and assisted reproductive technology and approaches to scientific and medical research across parts of the US. As such, it highlights the rapidly changing fertility landscape and the importance of heightened due diligence and expert legal management when accessing reproductive technology and building a family using fertility treatment, IVF, donor conception and surrogacy.
Need an expert fertility lawyer? For further information and assistance please contact Louisa Ghevaert by email firstname.lastname@example.org or by telephone +44 (0)20 7965 8399.