JEFFERSON CITY — After the Alabama Supreme Court ruled last month that pre-embryos created through in vitro fertilization are “extrauterine†unborn children, some IVF providers in that state suspended services.
A cascade of news coverage followed , stoking fears about the legal status and availability of IVF in other states, including Missouri.
But while some state lawmakers have scrambled to introduce legislation to explicitly protect IVF, the procedure remains legal and available in Missouri.
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That’s due in significant part to a 2016 ruling in a case known as McQueen vs. Gadberry, a divorced couple’s fight over possession of frozen embryos.
In the 2-1 decision, the Missouri Court of Appeals in ºüÀêÊÓƵ determined frozen pre-embryos were “marital property of a special character.â€
Because of that , a stored pre-embryo can’t be treated like a person, said Tim Schlesinger, the attorney who represented Justin Gadberry, the prevailing party in the case.
“It protects people who are going through fertility treatments and creating embryos. It protects them so that they don’t have to worry about the state coming in and telling them what they can do with their embryos. It also protects the providers of IVF from liability for things like wrongful death, which is the issue in Alabama,†said Schlesinger, .
Part of the McQueen ruling dealt with two Missouri statutes.
State law says that “the life of each human being begins at conception†and conception is defined as “the fertilization of the ovum of a female by a sperm of a male.†It also says that “unborn children have protectable interests in life, health, and well-being†and defines unborn child as “the offspring of human beings from the moment of conception until birth and at every stage of its biological development, including the human conceptus, zygote, morula, blastocyst, embryo, and fetus.â€
But the appellate court essentially held that if you interpret those statutes in such a way as to characterize frozen pre-embryos as people, the interpretation is unconstitutional, Schlesinger said.
Such an interpretation could allow one party to use a stored embryo to start a pregnancy against the wishes of the other party — the issue in McQueen — and that would violate a person’s constitutional right to procreate or right not to procreate.
The Dobbs ruling
The U.S. Supreme Court’s 2022 Dobbs decision, which ended the federal constitutional right to abortion, empowered states to regulate — and, like Missouri, even ban — abortion. But Schlesinger said that ruling has no direct impact on IVF.
“Abortion is very, very, very different from what to do with stored embryos,†he said. “And I don’t think the Dobbs decision has any direct impact on what to do with stored embryos. It only has an impact on what to do with stored embryos and access to in vitro fertilization treatment if what Dobbs really means is that we are now saying that there is really not any right to privacy.â€
But , a law professor at the Center for Health Law Studies at ºüÀêÊÓƵ University and a reproductive health advocate, said that since Dobbs neither a state appellate court nor the Missouri Supreme Court has taken up questions of how frozen pre-embryos should be characterized in light of Missouri statute that says life begins at conception.
“Until we have that, the confusion is enough to give people concern,†Fields Allsbrook said.
The court decision in McQueen relied on U.S. Supreme Court precedent related to Roe v. Wade and the right to privacy, Fields Allsbrook said. But as a result of Dobbs, the precedent set by Roe is no longer controlling law.
“Without that, I can’t say how the court would decide today if this case came before them again,†she said.
Human life
Regardless of questions on how Missouri courts would characterize stored pre-embryos today, there is still widespread and significant variation in how people — from doctors to state lawmakers — view conception, embryos and the inception of human life.
Dr. Amber Cooper, chief medical officer for genomics and laboratory science at , oversees the company’s IVF centers across the U.S. and is the medical director for its ºüÀêÊÓƵ practices.
Since the Dobbs decision put abortion regulation into states’ hands, variation in how conception is defined in state law has become more apparent.
“Does that mean a fertilized egg? Does that mean an embryo that develops into a blastocyst? Does that mean an embryo that has implanted in the uterus and a pregnancy is established?†Cooper said.
Cooper said Kindbody doesn’t use the term “conception.â€
“We define the stages of embryo development and implantation and pregnancy in very scientific ways,†she said.
Cooper said that what made the Alabama Supreme Court decision so controversial is that most embryos don’t result in live births — in fact, it’s only a small percentage of embryos that do.
Sometimes embryos stop growing on their own — both in the lab and in the body — and sometimes in IVF, genetically abnormal embryos aren’t transferred to the uterus.
There are common misperceptions that with IVF, patients make a lot of embryos, and IVF clinics are discarding or abandoning a lot of embryos, Cooper said.
“I believe truly that no one understands how precious embryos are like a patient that undergoes IVF,†she said. “And the majority of patients are desperate to use every embryo that they make and develops and has potential for life. But unfortunately, they don’t all result in that.â€
Republican state lawmakers, who generally oppose abortion, hold a range of views on conception, the beginning of human life, and IVF.
Republican Rep. Kent Haden, a Mexico veterinarian who chairs the House Healthcare Reform committee, said individuals will “have to come to their own personal opinion on†how they see the fertilization of a human egg, whether in a lab setting or a uterus.
“That is a very complex issue that a lot of people haven’t really thought down to that level — or let’s put it this way — have had to make a decision down to that level,†Haden said.
Haden said that his view is that human life begins when an egg is fertilized, in a lab or a womb.
But when looking at legislation related to issues on conception or IVF, lawmakers need to account for their constituents’ viewpoints and make decisions based on the substance of proposed bills.
“I’m a pro-life Catholic,†said Rep. Jim Murphy, a south ºüÀêÊÓƵ County Republican. “There’s no doubt about that. I believe in life from the moment of conception on.â€
Murphy sponsored legislation in 2021 that allows for “Safe Haven Baby Boxes“ in Missouri for mothers to anonymously surrender newborns for whom they are unable to care.
“I think it gets a little fuzzy when it’s outside the body and couldn’t possibly become a living human being unless it was put back into a body,†Murphy said. “I don’t think in a petri dish it’s viable.â€
Pushing the boundary
Rep. Bill Allen, a Kansas City Republican, last week introduced a bill he said is intended to protect the right to access IVF.
Allen said that as a Catholic, he has always believed that life begins at conception, and that “IVF pushes that boundary a little bit.â€
But he said IVF benefits families, and in that sense, can be seen as “pro-life.â€
Sen. Bill Eigel, R-Weldon Spring, said that there need not be a binary decision between IVF and the idea that life begins at conception.
“I think we can do both,†Eigel said last week. “I have said this my entire life, that life begins at conception.â€
Sen Rick Brattin, R-Harrisonville, said that creating “a plethora†of embryos and putting them into storage is wrong, and embryos should only be created through IVF if they are “going to be implanted at that particular time.â€
Sam Lee, an anti-abortion lobbyist for Campaign Life Missouri, said “that human life is sacred from conception onward, and that all human life should be treated with dignity,†he said. “To create human embryos to freeze them or destroy them is not treating human life with any sort of dignity.â€
But Lee also said that some of the IVF legislation, like , introduced after the Alabama Supreme Court decision is “overbroad†and “ridiculous.â€
“This would introduce a Wild, Wild West of in vitro fertilization,†he said.
But the court’s decision in McQueen is still good law in Missouri, said Schlesinger, and stored embryos created through IVF are considered “property of a special character in Missouri.â€
Schlesinger, Cooper and Fields Allsbrook all said that while the Alabama Supreme Court’s decision is cause for concern, there is not an immediate threat to IVF in Missouri.
“Right now, patients who have embryos in Missouri are watching. They’re anxious. They’re afraid a little bit. Some are calling asking to move their embryos out of state because they’re worried Missouri could follow suit,†Cooper said. “Right now we’re talking to patients. We’re telling them to remain calm.â€
Originally posted on Tuesday, March 5.