The injustice of infertility in a post-Roe world

What reproductive care and lack of access can mean for fertility treatments

Published May 31, 2023 5:31AM (EDT)

Sad young adult woman patient | US Supreme Court (Photo illustration by Salon/Getty Images)
Sad young adult woman patient | US Supreme Court (Photo illustration by Salon/Getty Images)

Over the last couple of weeks, we watched as the FDA approval of mifepristone hung in a precarious state. Finally, the Supreme Court issued an order allowing access to mifepristone to continue–for now. The opinion of the federal judge who started it all represents a  lack of judicial discipline, overreach, and disregard for scientific expertise which jeopardizes our personal right to make decisions about our health and the health of our families. 

As an obstetrician/gynecologist with over 25 years of clinical experience, I am chilled by the impact which misguided judicial rulings have on the patient-provider relationship and ethical principles they invoke. . I worry about the quality of health care when politicians and judges decide to practice medicine instead of healthcare providers. As a provider who cared for couples challenged by infertility, I've seen firsthand how limiting reproductive care affects families who are trying to conceive, too. 

I was raised as a Catholic, spent my K-12 years in a parochial school system, and attended a Jesuit medical school. My Mother was a devout Catholic, attended daily mass and championed an interfaith council in the small town where I was raised. Yet, we are also strong proponents of reproductive rights.

As a medical student at Georgetown School of Medicine, I learned about bioethical principles from experts, including Edmund D. Pellegrino, at one of the oldest academic ethics centers in the world founded in 1971. I learned how to think and not what to think. We were taught about the framework and application of the Georgetown Mantra of Bioethics when making shared treatment plans with our patients:

  • 1.  protect the right of individuals to make decisions about their own healthcare
  • 2. Do no harm or injury to the patient, either through acts of commission or omission
  • 3. e kind and do what is in the best interests of the patient 
  • 4. Practice equity and fairness in treatment

In light of this framework, consider how judicial and government involvement could affect important healthcare decisions between patients and their healthcare providers. There are three fertility-related scenarios where this framework becomes even more vitally important to a positive health outcome: managing the number of fetuses in a multiple pregnancy, testing embryos for genetic abnormalities, and deciding what to do with frozen embryos.

Multiple pregnancies

Multifetal pregnancy reduction is a procedure that can be done in the first or early second trimester to reduce the number of fetuses in a pregnancy with more than one baby. Fertility treatments are one of the reasons why more multifetal pregnancies are happening.

However, having a pregnancy with multiple fetuses can increase the risk of complications for both the pregnant person and the babies. These complications may include pregnancy loss, stillbirth, and health issues such as hypertension, preeclampsia, and gestational diabetes for the pregnant person. For the babies, complications may include prematurity, cerebral palsy, learning disabilities, slow language development, behavioral difficulties, chronic lung disease, developmental delay, and even death.

Couples are faced with the difficult dilemma of whether to terminate the pregnancy, continue with all the fetuses, or reduce the number of fetuses by selective termination.

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It's important for people who are pregnant with more than one baby to be aware of these risks and to work closely with their healthcare provider to monitor their pregnancy and make informed decisions about their care.

Genetic testing

Preimplantation Genetic Testing (PGT) is a way for doctors to check the genetic material of embryos before they are implanted into a woman's uterus during in vitro fertilization (IVF). This helps to ensure that the embryos are healthy and have the right number of chromosomes, which can help reduce the risk of genetic disorders or miscarriages.

During PGT, a small sample of cells is taken from the embryo and analyzed for genetic abnormalities. This process is done in a way that is safe for the embryo and does not harm its development. Once the genetic testing is complete, the doctors can choose the healthiest and most viable embryos for implantation.

Where is the respect for autonomy, doing no harm, advocating for the patient, and justice in removing the freedom to make difficult health care decisions for you and your family?

PGT can be especially helpful for couples who have a higher risk of passing on certain genetic conditions to their children. It can also increase the chances of a successful pregnancy for women who have experienced multiple miscarriages or have had difficulty conceiving.

Overall, PGT is a powerful tool that can help couples start or expand their families with greater peace of mind about the health of their future children.

Couples may choose to pursue PGT if:

  • One of them is a carrier of a known genetic disorder
  • The pregnant parent has a history of recurrent miscarriages
  • The pregnant parent is older or experiencing reduced ovarian function
  • The couple has undergone multiple failed fertility treatments
  • They have personal reasons for wanting to undergo PGT, such as a desire for greater peace of mind about the health of their future children

Couples need to weigh several factors before deciding whether to proceed with PGT. Even if the PGT results are "normal" or negative, there is still a possibility of a newborn with genetic abnormalities. Furthermore, there is a risk of miscarriage (between 7 and 10 percent) and potential harm or loss of the embryo during testing due to handling or manipulation. It's important to discuss all these factors with a trusted healthcare provider to make an informed decision about whether PGT is right for you.

Unclaimed embryos

One of the most significant difficulties with unclaimed embryos is deciding on the appropriate course of action for them. One option is donation for scientific research or embryologist training. This can provide valuable training opportunities for embryologists and other medical professionals as well as be used to develop new treatments and technologies. Another option is to donate the embryos to other couples for reproductive purposes and potentially provide a new chance at parenthood for others. Lastly, discarding the embryos is also a possibility. By considering all the available options and seeking guidance from medical professionals, couples and individuals can make an informed decision that aligns with their values and beliefs.

The future

Will couples and their physicians be able to continue to freely make these painstaking and difficult decisions or will courts and politicians limit bioethical principles of patient autonomy, beneficence, nonmaleficence, and justice and erode the sanctity of the patient/provider relationship?

Consider a world where…

  • It is a crime to reduce the number of fetuses by selective termination, thereby removing patients and providers from the decision making. This could sacrifice the outcome of the pregnant parent and remaining fetuses in favor of the one of few fetuses. 
  • IVF doctors are held liable if PGT leads to a miscarriage
  • Courts and legislatures have significant or complete influence over what to do with frozen embryos instead of patients and providers; discarding embryos not needed for reproduction may no longer be an option

Where is the respect for autonomy, doing no harm, advocating for the patient, and justice in removing the freedom to make difficult health care decisions for you and your family? What's at stake is our freedom to choose and freedom to decide—in a nutshell, our democracy.

We share a lot of similar day-to-day problems, a sense of community, and a desire for what's best for our families. Let's consciously focus on how to think and not be led by what to think. Hope lies within us and unites us. Let's hold each other accountable for defending our right to our personal health care decisions, especially for aspiring parents. Our democracy hangs in the balance.


By Dr. Mary Jacobson

Dr. Mary Jacobson serves as the Chief Medical Advisor at Alpha Medical

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