Earlier this year, the Alabama Supreme Court ruled that embryos created through in vitro fertilization should be considered children. The ruling, combined with the U.S. Supreme Court’s overturning of Roe v. Wade, prompted some advocates for IVF and other assisted reproductive health care to call for increased protections.
A decades-old Missouri law states that life begins at conception, and another state law defines conception as fertilization. Some have argued these two separate laws could potentially outlaw IVF for the Missouri patients who use the procedure.
According to the U.S. Department of Health and Senior Services, 1% to 2% of infants born in the state in 2021 had been conceived using IVF and other reproductive procedures.
After the Alabama court handed down its decision, lawmakers in the Missouri House and Senate introduced legislation that would protect the procedure in the state.
Although the Missouri Senate bill offering protections received bipartisan support, lawmakers didn’t move the legislation out of a committee, and the House bill did not receive a hearing.
St. Louis Public Radio’s Sarah Fentem spoke with reproductive law attorney Tim Schlesinger of the Midwest Fertility Law Group about what legal protections exist for those patients and what could affect their right to use IVF in the future:
Sarah Fentem: When we talk about these frozen embryos that are used for people that are using IVF, what are those? What are we referring to?
Tim Schlesinger: A frozen embryo, that's the popular term, but it's really not an embryo. A frozen embryo is a fertilized egg that develops for five days, and then it is frozen, cryopreserved, and at that stage it is called a blastocyst. A more appropriate term, I think, would be pre-embryo, but when people are referring to frozen embryos, that's what they're referring to.
Fentem: The Missouri General Assembly has also stated that life begins at conception. Does that contradict the definition of an embryo not being a person?
Schlesinger: So conception is a legal term. It's not a medical term. The Missouri Court of Appeals decided in 2016 that interpreting the Missouri statute in such a way that would cause a frozen embryo, or pre-embryo, to be considered to be a child, would be unconstitutional. The Missouri Court of Appeals decided that that would violate the rights of the people who formed those embryos to make their own decisions regarding when and how to have children.
Fentem: It sounds like there might be some contradictory definitions and decisions here in Missouri. Does that put IVF patients at risk? Is there any ambiguity there that you think opens the door for patients not being able to get this procedure done?
Schlesinger: I can't predict what's going to happen with the state legislature, but the current state of the law is not ambiguous, because this decision was rendered in the face of the statute that says life begins at conception. So this decision takes precedence over that. It is possible that the Missouri legislature could pass some subsequent legislation which would seek to define a frozen pre-embryo as a person or a child. If they do that, then, yes, IVF is at risk.
Groups who want to restrict in vitro fertilization … have been emboldened by the overturn of Roe v. Wade. They've been emboldened by the Dobbs decision. They've been emboldened by the makeup of the U.S. Supreme Court. And so as a result, there is a reason for fertility patients to be more nervous.
However, I don't think the majority of people in any state actually want to restrict access to in vitro fertilization.
Fentem: I think the layperson would look at this and say, if Missouri law says conception is fertilization, if embryos are fertilized, an embryo is life.
Schlesinger: Those two statutes taken together could certainly be taken to mean that as soon as fertilization happens, the entity that's created is a person.
However, those statutes were in existence in 2016 when the Missouri Court of Appeals decided McQueen v. Gadbury. … Those two statutes were highlighted and argued over, and the court held that interpreting those two statutes in such a manner that would characterize a frozen pre-embryo as a person would be unconstitutional, that would violate the constitutional rights of the people forming the embryos to decide whether or not and when to have a child.
We have a United States Constitution which has enshrined within it certain rights, and we have a right to privacy. The right to privacy gives rights to certain specific rights. One of those rights is the right to determine whether or not to have a child and when to have a child.
Fentem: You refer to pre-embryos a lot. Can you just say what you mean when you're talking about that? Why do you use that word and not frozen embryos, which is the word that we hear a lot of people use?
Schlesinger: I use the term pre-embryo in place of the commonly used term frozen embryo, because an embryo has blood flowing through it. An embryo is in the uterus. A pre-embryo is in a lab. It is stored in a vial. It's frozen.
Fentem: Has the decision in Alabama had any effects tangibly on providers here in Missouri? Have you heard of any providers that have been spooked by this particular decision and have stopped providing services?
Schlesinger: There are two answers to that question. The first answer is that yes, providers were spooked. But the second answer is, I don't believe that any provider, at least in the St Louis area, has stopped providing services as a result of that decision.
I think one thing to keep in mind is that the Alabama decision has absolutely no direct effect on patients in Missouri.
Mostly, these laws happen in the states. If people want to protect fertility treatment, they need to contact their state legislators and make sure that fertility treatment is protected, and they need to make sure that it's not just the clinics who are protected. They need to make sure that the patients are protected.
Fentem: We've also got a ballot initiative on tap here in the next coming months that specifically mentions the right to reproductive freedom. If that initiative passes, would it protect IVF in the way that some patients are calling for?
Schlesinger: [It would] offer a great deal of protection for Missourians and fertility treatment. … If that amendment passes, it would make it much more difficult for the state legislature to pass some legislation seeking to characterize frozen embryos as a person or a child.
If the amendment passes, any subsequent legislation seeking to characterize a frozen embryo as a person or a child would likely be ruled unconstitutional, as [it would violate] the Missouri Constitution.
