Content advisory: This week's newsletter delves into IVF and abortion politics. Before reading this dispatch, perhaps take a moment to consider whether right now is the time for you to read about these topics. Maybe it'd be kindest to yourself to read this email another time.
Dear friends,
In September 2015, a thoughtful friend sent me an unexpected email. It was just weeks before Chris and I were about to undergo our fourth unsuccessful round of IVF.
My friend had a simple question: Would you be interested in donated embryos? This friend knew a couple who'd undergone IVF about a decade earlier. The couple had been successful with the process—so successful that they had several unused embryos stored at a clinic in Tennessee. Their family was complete, and the time had come to decide what to do with the frozen embryos. They weren't prepared to destroy the cells; creating them had been physically and emotionally challenging as well as expensive and time-consuming. The couple also knew firsthand the hardships of IVF, and they sought to donate the remaining embryos to others who needed help building their families.
The offer was intriguing. We were running out of money, insurance coverage and time, the crucial ingredients for successful IVF. In the thick of treatment, you'll consider anything that helps you achieve your goal, and at a minimum, the offer expanded our options. So we met the potential donors over the phone, and I contacted the clinic in Tennessee for more information about accepting donor embryos.
It soon became clear that the donors' generous offer would not achieve our goal of a child, for reasons financial, logistical, ethical and political. I was reminded of its folly this week as the Alabama Supreme Court issued a ruling saying that embryos destroyed in a clinic mishap are considered children under state law. The court decision stems from a lawsuit filed by several families whose stored embryos were destroyed in a 2020 incident by a patient who wandered into an unsecured area of the clinic. The patient burned their hands on a subzero storage container, dropping it and destroying its microscopic contents.
The lawsuit took a very specific legal approach using Alabama's Wrongful Death of a Minor Act, a statute dating to 1872 allowing parents to recover punitive damages for their child's death. The decision mostly allows the families affected by the clinic mishap to proceed with their negligence claim against the clinic. The logistical and political ramifications go far beyond, though, with the assertion that embryos in frozen storage are children "without exception based on developmental stage, physical location, or any other ancillary characteristics."
In response to the ruling, many of Alabama's IVF clinics paused operations, a disruptive and even heartbreaking event for people trying to have a child. Shippers of frozen embryos paused transport to and from the state, and lawmakers said they'd act to ensure IVF could continue unimpeded in Alabama.
But what is most alarming is the language of the lawsuit and the legal opinion, which draws upon the legal framework of the personhood movement, a multi-decade effort to extend legal rights to fetuses or embryos before viability outside of the womb. This language shows up most obviously in a concurrent opinion by Tom Parker, the chief justice of the Alabama Supreme Court.
Parker has long been seen as one of the leading proponents of personhood and one of the architects of the dismantling of Roe V. Wade. He's a judge who critics say is guided "more by religious doctrine" than the law. "Human life cannot be wrongfully destroyed without incurring the wrath of a holy God," wrote Parker in his recent opinion.
Nine years ago, I saw firsthand how the personhood argument had already infiltrated Assisted Reproductive Technology—which includes IVF and other procedures to help infertile and single people and same-sex couples become parents.
The donor eggs we were considering were stored at the National Embryo Donation Center, a clinic in Tennessee. The language of its website gave me pause back in 2015, and nearly nine years later, little has changed about its approach. "Embryo adoption is a wonderful way to honor God’s tiniest image-bearers, allowing mothers to become pregnant with their embryo-adopted children."
The use of the word "adoption" is deliberate—you may even remember the term "snowflake baby," which was popularized during the George W. Bush Administration when stem cell research was under debate. But it is impossible to legally adopt an embryo, not even in Alabama. Adoption "refers to the act where an adult formally becomes the guardian of a child and incurs the rights and obligations of a parent," according to the Legal Information Institute. Embryo donation—not adoption—is the preferred term of the American Society for Reproductive Medicine, because adoption is a legal term reserved for a living child.
Back in 2015, NEDC allowed people to store unused embryos for free, which is how they attracted donors who didn't want to pay to keep the cells on ice indefinitely. Embryos storage can cost an estimated $500 to $1,000 a year.
To their credit back in 2015, our potential donors didn’t realize that they'd been storing their unused embryos at an anti-abortion clinic. Like many people who stored unused embryos there, they were unaware that the clinic required donor recipients to be heterosexual, married Christian couples, although The New York Times had detailed those restrictions in an article just a few months before my friend sent that email. NEDC even conducted "home visits" to verify potential recipients aren't gay or single or non-Christian—and it still does. The use of "home visit" is a phrase that, once again, contributes to the language of personhood. "Many donate embryos through the NEDC because of the peace of mind provided by our home study requirement, which means your embryos will go to a stable, healthy family," the clinic's website says, to this day.
The coded bigotry was already a dealbreaker for me, but there were other troublesome signals. When we were considering the donor embryos, I spoke on the phone to a consultant at NEDC. They wouldn’t allow us to conduct genetic testing on the donor embryos before transfer, a process that was standard operating procedure at the clinics where I'd already been a patient. (Testing screens for inherited conditions like cystic fibrosis as well as chromosomal abnormalities.) It was also going to cost about $10,000 to transfer the donor's embryos to my uterus. That was about half the cost of an IVF cycle with my own eggs, but still a lot of money. None of it would be covered by insurance.
Last week, I went back and re-read my emails from that time. I was surprised to see how clear-headed I was about what was going on, especially given how infertility can warp your thinking. "I have some concerns about the ideology of the donor bank," I wrote to my friend. "We'd have to think a lot about whether we would want to support, with thousands of our own dollars, an agency that would refuse to donate embryos to a same-sex couple, or might even turn us down because we do not attend church."
Few people know this story. I have anonymized the donors we connected with in 2015 because everyone is entitled to privacy and autonomous choices about whether and when to have a child. But the Dobbs decision has ended the autonomy of reproductive decisions for people in 24 states and beyond. Everything is different now. As the 1970s feminists understood, the personal is the political.
I share this personal story with you because I was filled with sadness last week on behalf of the people whose IVF treatment was disrupted in Alabama, but I also grieve for the women who cannot access reproductive care in so many states. I got swift, competent care in Maryland in 2017 after my final IVF cycle led to a rare form of ectopic pregnancy, one where a rogue embryo attached itself to my right ovary. If it had ruptured, I could have bled to death. I fill with rage whenever I read about women in states like Texas and Missouri who cannot access that same basic life-saving intervention for an ectopic pregnancy, health care that I took for granted.
And yet the attack on IVF is an especially nasty assault on people who are actively trying to build their families. One of the worst aspects of infertility is the lack of control over a process that comes naturally and easily to most people who want to have children. Patients in Alabama who last week were forced to halt their IVF cycles now face what many Americans have come to know: That our reproductive autonomy is in the hands of the courts. This is, sadly, already apparent in places where abortion is now illegal, including Alabama. The cruelty, it seems, is the point.
My eggs and Chris's sperm never resulted in high enough quality embryos to freeze. At each clinic, we filled out a form asking us how we'd manage hypothetical extra embryos, but we never had to make an actual decision. (I always checked the box to donate any unused embryos to scientific research.) But if a cycle goes well, many people do have extra embryos to store for future use or disposal.
I never once thought of our embryos as children, because they were not. They were clusters of cells with an exceptionally precarious potential for life. We hoped desperately that our little cell blobs would continue to divide and grow in their petri dishes, but most did not. During an IVF cycle, a reproductive endocrinologist prescribes medication that stimulates the ovaries to extract as many eggs as possible, knowing that only a small percentage of the oocytes themselves are viable, and that an even smaller percentage will be fertilized successfully to begin the process of dividing and growing. An even smaller percentage of those cells make it from the blastocyst to the embryo stage. And an even smaller number of those embryos will actually implant and result in what statisticians call "live births."
To ascribe childhood to a cluster of microscopic cells is not only scientifically inaccurate, but a deliberate choice of language to support personhood arguments crafted by anti-abortion activists, including Parker, the chief justice in Alabama.
In recent days, I've considered the "personhood" of the embryo that attached itself to my right ovary during my final IVF cycle in 2017. Using the logic of the Alabama legal opinion, was that embryo a living person who could be charged with attempted manslaughter? No, of course not, that's ridiculous. Just as it’s ridiculous to claim that a cluster of cells should have the same rights as a living child. Our rogue embryo was a cluster of cells with the potential for life, nothing more.
In retrospect, the donated embryos from the clinic in Tennessee wouldn't have mattered. Nothing would have mattered. Over four years, I sought treatment at three different clinics in Washington D.C., Maryland and New Jersey, and underwent six rounds of IVF, plus three early rounds of IUI—colloquially known as the turkey baster method. I had dozens of ultrasounds. In all that time, no one realized that my uterus was clogged with tissue and blood. I was even praised for my thick uterine lining, as though I had something to do with it! But what doctors, nurses and technicians viewed onscreen as a lining ideal for implantation was actually adenomyosis. That's a condition where endometrial tissue grows into the muscular wall of the uterus. Eventually, it crowds the uterus with tissue, making a successful pregnancy nearly impossible.
I remain baffled as to why the adenomyosis went undiagnosed. In fact, I did not even learn the word or receive a diagnosis until five years after my final round of IVF, when I had a D&C for severe cramps and bleeding. My gynecologist thought it was fibroids. But the bleeding was caused by adenomyosis, she told me during a five-minute follow-up appointment in the days after my D&C. "Well, I guess you now have some answers to your medical mystery," she said casually, as though it was nothing to go through six rounds of IVF, a miscarriage and a life-threatening ectopic pregnancy.
Given the toll it took on our emotions, health and finances, I can't explain rationally why we kept chasing procedures of ever-escalating scientific complexity in the pursuit of a child. We even took out a second mortgage on our house in Washington, D.C. to afford a final round of treatment. (The clinic guaranteed a successful outcome or our money back. We got $30,500 back, without a lawsuit.)
Over the past year, people who've read Windfall often reach out via email to ask whether I am at peace with not having children. I don't mind the question, which is a natural one, always posed kindly. I write back to my correspondents to say this: Every so often, I see a child who makes me catch my breath. I sometimes spend a few moments considering a very different version of our lives, one that would have included the child we didn't have. I mourn that Chris didn't get to be a father, a role he would have embraced. And every now and then I wonder what some of those clusters of cells could have grown into, had the timing been right.
Yet as I wrote in Windfall, we've worked hard to live lives "rich with satisfaction." Creative, active lives with many friendships and caring relationships with people, our city, and our planet. Lives full of delight and occasional challenges. This is what I want for everyone in Alabama and beyond. I want it for those who choose to have children and those who do not.
Without choices, a life rich with satisfaction is impossible.
Yours,
Erika