Surrogacy Is the New Battleground in Reproductive Freedom
Evelyn and Will Clark met after college through mutual friends. Their shared sense of humor sparked a friendship that blossomed, and “it just felt meant to be, with no question that it was right and the timing was perfect for both of us,” Evelyn recalled.
The Clarks were involved at their church, and they dreamed of raising a family together in the town where Will grew up and where they met. Everything was falling into place: After dating for less than a year, they got engaged, and four months later they were married. They found a home in a safe neighborhood with great schools, close to relatives.
Unbeknownst to the Clarks, the road to expanding their family would be a long and grueling one—a roller coaster of heartbreak, hope, and medical intervention. Realizing their dream would require the help of a series of specialists, plus a woman who started out as a perfect stranger.
Around four years into marriage, frustrated by her inability to conceive, Evelyn submitted to a battery of invasive and uncomfortable fertility tests. Sometimes it is relatively simple to treat fertility issues. But when it is not, the results of these tests can crush patients. Unfortunately, Evelyn’s diagnosis revealed an issue impossible to fix. A brusque radiologist delivered the news that she had a congenital abnormality—a unicornuate, or partial, uterus.
Would she ever be able to have children, she wondered? It’s possible, he replied, but perhaps “half” as many as your friends do. Then he laughed.
The sting of the doctor’s joke remains fixed in her memory years later. In a follow-up conversation with her reproductive endocrinologist, the news got worse: Her uterine abnormality meant not only that becoming pregnant would be difficult, but that any given pregnancy had just a 28 percent likelihood of ending with a live baby. She was at higher risk of miscarriage and stillbirth, but also of ectopic pregnancy—a potentially lethal condition where an embryo implants outside of the uterus.
This unnerving possibility would stop many women from trying to conceive altogether. Yet even with the deck stacked against her, Evelyn was committed to finding a way. Although fertility treatment could not resolve the risks attendant to a partial uterus, it could increase Evelyn’s chances of conceiving. “I’m not brave by nature,” Evelyn ventures. But she was determined.
IVF Under the Microscope
A couple years ago, fertility treatments weren’t on the public policy radar. The use and existence of reproductive technologies were largely taken for granted. That changed after the Supreme Court’s Dobbs v. Jackson Women’s Health Organization decision kicked off a wave of stricter abortion laws at the state level. The Supreme Court of Alabama ruled that embryos created through in vitro fertilization (IVF) were legally children, halting fertility treatment for some women in the state and catapulting the topic into the national spotlight.
Although Alabama’s Legislature hurriedly passed legislation granting patients and medical providers immunity from prosecution, IVF became a live policy issue overnight. Pro-life commentators and research analysts quickly began to wade into the debate.
IVF joins human eggs and sperm in a lab and transfers the resulting embryo back to the patient in hopes of a successful pregnancy. It is the most effective way for patients to overcome a varied list of male and female fertility issues, from damaged fallopian tubes to low sperm motility, and it produces about 97,000 U.S. births annually.
Despite these benefits, critics have laid out an expansive list of concerns. These range from anxieties about separating procreation from the marital act to exaggerated worries about medical risks. But for pro-lifers, the leading fear is that doctors are discarding or indefinitely freezing unborn children. As then-Rep. Matt Rosendale (R–Mont.) put it, “If you believe that life begins at conception…there is no difference between an abortion and the destruction of an IVF embryo.”
It is true that IVF sometimes creates extra embryos that are not transferred back to the patient. At the outset, patients and doctors don’t know how many embryos will develop successfully (two-thirds of embryos’ development arrests) or how many embryo transfers will be required to produce a live birth for an individual patient. Beginning the process with more embryos increases the likelihood of success.
Such critics downplay how much the creation of human life is an inefficient process, whether it happens inside or outside the body. Conventional conception results in significant embryo loss, and the body regularly and naturally discards embryos in the process of trying to create life. Research suggests around 70 percent of conventional human conceptions do not survive to live birth, which makes IVF more like conventional reproduction than IVF critics care to admit.
President Donald Trump says he does not subscribe to his right flank’s more extreme views on this topic. Indeed, he promised during the campaign that the “government will pay” or “your insurance company will be required to pay” for all IVF treatment costs—proposals that pose their own problems, including high costs and unintended incentives for would-be parents to delay childbearing.
Yet despite Trump’s embrace of reproductive technology, fertility treatment feels fraught today in a way that it didn’t one year ago. IVF is a fresh target for activists emboldened by a major win on abortion. Since states will continue to set new abortion policy in the coming years, there will be many natural openings for policies that limit fertility treatments.
But when Evelyn began pursuing treatment several years ago, the political outlook was simpler. So instead of worrying about political complexities, she steadied herself and then launched headlong into a series of treatments with increasing levels of invasiveness, cost, and corresponding likelihood of success.
Fertility doctors often initially run patients through a course of intrauterine insemination, or IUIs, which have a low success rate of 5 percent to 15 percent. The thinking is that sometimes these procedures work, and
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