Will Texas Outlaw IVF Following Alabama Ruling?

Abbott not pushing legislation, but signals support for IVF

Fertilization outside of the body (Photo by Getty Images)

Dr. Kaylen Silverberg of the Texas Fertility Center in Austin is one of many fertility doctors in Texas who have feared “personhood” legislation for years – such legislation, which defines embryos as people, would make in vitro fertilization (IVF) untenable.

IVF and disposal of nonviable or extra embryos created through the IVF process isn’t addressed in existing Texas law. But a new ruling from the Alabama Supreme Court raises questions about whether Texans using IVF need to be worried.

Last week, Alabama justices ruled that frozen embryos count as children under a state law, so parents can sue for wrongful death. In response, IVF programs in the state stopped operations. The ruling doesn’t directly apply to Texans because it’s based on Alabama state law, rather than federal law. But it has “national implications,” per a news release from the American Society for Reproductive Medicine.

The ASRM called the ruling, “medically and scientifically unfounded.” The doctors’ organization explains that IVF works like natural fertility, during which several eggs are often fertilized before one develops and implants in the uterus. In IVF, several eggs are fertilized in a lab so doctors can select one with normal development to transfer into the uterus. Abnormal embryos may be disposed of, while other healthy ones may be frozen.

Conservatives in Alabama have taken issue with the new ruling, too. U.S. Sen. Tommy Tuberville, R-Alabama, told a reporter Tuesday that the ruling is “not really” acceptable to him, and said “the state’s getting ready to pass a law that, it’s gonna be okay … where it’s legal.”

Will Texas do the same? Gov. Greg Abbott hasn’t called a special session or pushed for legislation to protect IVF yet, but he’s signaled support for infertility treatment.

“We want to make it easier for people to have babies, not make it harder. And the IVF process is a way of giving life to even more babies,” Abbott told CNN’s Dana Bash Sunday. “We’re gonna have to find ways to navigate laws and in fact situations that are very complicated.”

When Bash pressed, asking if families in Texas with frozen embryos need to worry, Abbott responded: “You raised questions that are complex that I simply don't know the answer to.”

Dr. Silverberg, no stranger to fertility-focused lobbying, points out that Abbott has a history of supporting IVF. During the pandemic, many IVF programs deemed non-essential shut down, but not in Texas. “We went to the governor’s chief of staff who immediately took it to the governor and the governor himself said we could stay open during COVID. We were one of the only IVF programs open in the country.”

Silverberg also acknowledges a possibility that lawmakers interested in personhood legislation could see the Alabama ruling as an opportunity, but he’s not sweating that. “I work in the world of what’s likely to happen,” Silverberg said. “Is it likely that somebody in the Texas legislature will have a thought that this is a good idea and file a bill? Sure. Is it likely that it will go anywhere? No.”

Silverberg has talked with conservative legislators in Texas and Washington, D.C. about how different abortion-related legislation would hinder fertility medicine. He’s found them receptive, and in favor of IVF. He describes how one right-wing legislator responded when Silverberg explained how an embryologist could be charged with manslaughter for tripping and dropping a petri dish: the legislator decided against filing a “personhood” bill.

”We’re always alert,” Silverberg concluded. “But do I think this is going to be an existential event for IVF in Texas? No way in the world.”

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KEYWORDS FOR THIS POST

IVF, abortion, Greg Abbott, Kaylen Silverberg

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