Commentary: Issues lurking beyond Roe

January 21, 2022 5:48 am
Supreme Court building with demonstrators holding signs in the foreground

Demonstrators gather outside the U.S. Supreme Court last month as justices hear arguments in a Mississippi case that seeks to overturn Roe v. Wade. (Jane Norman | States Newsroom)

When Roe v. Wade (1973) was decided, the nature of human reproduction was much as it had been since biblical times. Since Roe, however, reproduction has changed dramatically. We are experiencing a reproduction revolution. 

Today we can harvest the eggs of women, the sperm of men, mix the two in a petri dish, and create embryos by the tens of thousands. We can implant these embryos in the wombs of prospective mothers or hired surrogates, and over 8 million babies have been born this way. 

We can design embryos, selecting eggs and sperm from donors with traits we prefer. We are beginning to design embryos by altering their DNA through gene-editing systems such as TALENS and CRSPR in order to obtain desirable traits and eliminate undesirable ones. The first gene therapies approved were for retinal degeneration (2017) and macular degeneration (2019).

We can freeze embryos, store them in cryobanks or clinics, and use them or not. We can assess and grade embryos (Grade A: Excellent; Grade B: Good; Grade C: Intermediate; and Grade D: Poor) based on their likelihood to survive implantation, and then select which embryos to use, which to sell to research labs, which to freeze and store (good for 100 years or so), and which to discard. 

All of these services – harvesting eggs, collecting sperm, forming embryos, grading, freezing, storing, implanting, obtaining surrogates, etc. – are available at many modern fertility clinics around the world, including over 500 in the United States. Such services are a leading product line in the rapidly growing and highly competitive field of “medical tourism,” a $100 billion industry. Here’s how one center summarizes its services on a very impressive website:

“Sunfert International Fertility Centre combines world-class doctors and technology with a personal, holistic approach to effective and affordable fertility care. With a selection of thoughtful packages designed for international patients, the clinic provides a full range of advanced fertility services including fertility assessment, IVF/ICSI [a sperm insemination procedure], egg donation, fertility preservation.”

This center is in Kuala Lumpur, Malaysia. If you’re looking for a “surrogate with a frozen embryo transfer,” you may be interested in Mother and Child in Kiev, Ukraine, where the full package (including medicines) costs $40,225 (far less expensive than in the United States). 

We also are on the verge of being able to bring embryos to term in artificial wombs. In 2017, a sheep was carried to term in a “biobag,” and a noted Yale professor predicted the existence of a fully functioning artificial womb for humans within a decade. His prediction seems to be on track. Cloning, an asexual way of creating organisms, is also advancing rapidly. 

Many analysts think the Supreme Court will overturn Roe in the pending Mississippi abortion case. The court may essentially grant authority to the 50 states to determine when life begins within their borders, and to resolve the competing interests of an embryo (that might be declared a child at conception, at first heartbeat, or at viability) and the pregnant woman carrying it. 

But such a decision also would seem, implicitly, to provide states with authority to answer most of the plethora of complex questions raised by the foregoing developments. Here’s a small sampling:

  • Should we prohibit embryos from being formed outside a womb? Being frozen? Being sold for research? 
  • Should surrogacy be allowed? In Italy currently, the pope opposes surrogacy because it is not the normal way of having babies, and many feminists oppose it because they feel poor women are being exploited and that only rich people would have this option. If surrogacy is legal, should health insurance cover those costs? 
  • Should the disposal of all “abandoned” or “poor quality” frozen embryos be allowed? If the answer is no in “at-conception” states, would those states be obligated to raise the “children” to birth (or even to adulthood)? If so, could the state hire surrogates to do this? Draft young women to serve as surrogates? Buy incubators (once they’re available) and run a “hatchery” for this purpose (as “Brave New World” predicted 90 years ago)?
  • If unwanted embryos could be disposed of in a “viability” state, could frozen embryos from an “at-conception” state be brought there for disposal or would this constitute murder in the “at-conception” state?
  • Could prospective parents who obtain a frozen embryo from a clinic choose it on the basis of race, gender, religion, or disability? Could a snubbed embryo in an “at-conception” state challenge that decision? If so, by what process?
  • Could mothers be required by states (or surrogates required by prospective parents) to alter an embryo through CRSPR treatments to prevent certain diseases? Do embryos have rights to insist on alteration or to refuse it?

Note that most of these questions involve considerations that are quite different from those applied to abortion, and this may alter some of the sharp lines we have drawn between “life” and “choice.” Consider the handling of “abandoned” frozen embryos (estimated to number 90,000 to several million) and the millions more that will become abandoned as current embryo donors die. A “life” advocate might support a law requiring a state to raise all of these embryos rather than dispose of them, and a “choice” advocate might agree since that action would not deprive any woman of control over her body. 

Or again, a “choice” advocate might be comfortable disposing of these 3- to 5-day-old embryos, and a “life” advocate might find some basis to agree, particularly if the costs of raising all embryos would bankrupt the state. Also, “life” and “choice” advocates might join forces in opposing surrogacy if they felt it allowed society to exploit poor women. And, advocates from both camps might join together to oppose laws requiring pregnant women to use embryo-alteration techniques to protect babies from debilitating conditions. 

If the Supreme Court grants authority to states to regulate the threat of abortion to embryos, its decision would also, implicitly, grant them authority to regulate such other threats as freezing, genetic alteration and design, use in research, and disposal of abandoned and unneeded embryos, or ones deemed unmarketable because of “poor quality.” And, granting states authority to regulate the relative rights of embryos and the pregnant women carrying them would also seem, implicitly, to grant them authority to regulate rights and responsibilities of egg and sperm donors, surrogates, research scientists, cryobanks, international fertility clinics, and others involved with reproduction within their own borders.

For the most part, these implications are virtually unidentified, unimagined, and unexplored. None of the 140 amicus briefs in the pending case seems to raise them. Are states really appropriate bodies to assess and regulate these issues? Is abortion a good issue to instigate such a sweeping reallocation of power? Will predictable conflicts among state policies intensify America’s growing divisiveness?

I don’t pretend to know the answers to such questions, but answers soon may be imposed without much deliberation by the court, states, or the citizenry at large; and those answers may be very hard to change later if they prove to be unwise. 

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Paul Levy
Paul Levy

Paul Levy is a retired lawyer, social worker, and teacher who has a longstanding interest in social justice issues and policy analysis. For some other of Paul’s writings, see: