Embryonic research could be the next goal after Roh

Two weeks after that The US Supreme Court has overturned federal abortion rights, Ye Yuan heard from a woman who wanted to reverse her decision to donate her embryos for scientific research. The woman, who contacted Yuan anonymously through a fertility counselor, feared she would be forced to have her embryos frozen indefinitely if Colorado law made disposing of or experimenting with human embryos illegal. Could a law change in a year or five to stop them having the last word on what happened to them?

In states where human embryo research is legal, people undergoing IVF often have the choice of donating surplus fertilized embryos for scientific research. These are sometimes used to look for possible treatments for conditions like diabetes or, as in Yuan’s case, to research ways to make IVF more successful. “Those discarded embryos are really one of the key elements for us to maintain the high quality of our platform here,” said Yuan, director of research at the Colorado Center for Reproductive Medicine (CCRM). But in the wake of Dobbs Judgment, he is concerned that people will be less likely to donate their surplus embryos for research and that embryo research could become the next target of anti-abortion activists.

“It’s like you’re a little girl living in a dark room. You know there are bad guys outside, but you don’t worry too much because the door is locked,” Yuan says. “But then someone tells you the door has been unlocked.” Yuan worries that anything that slows access to human embryos will ultimately result in slowing progress in IVF, which accounts for between 1 and 2 percent annually of all births in the United States.

The majority opinion written by Judge Samuel Alito doesn’t emphasize IVF or human embryo research, but his use of language to describe abortion could be considered applicable to embryos outside the body as well, says Glenn Cohen, a bioethicist and law professor at Harvard Law School. The right to abortion differs from other rights, Alito notes in the statement, because it destroys “potential life” and the life of an “unborn human being.”

“The same thing that he uses to distinguish abortions seems to me to be fully applicable to distinguishing embryos,” says Cohen. “It’s very, very clear to me after that Dobbs that every state is free to prohibit the destruction of embryos in the context of research.”

The wording used by the legislature to describe the beginning of human life is also important. Trigger legislation in at least nine states – laws aimed at restricting abortions after the fall of fast roe– include language that implies that an ovum becomes an “unborn child” or an “unborn human” at the very moment of fertilization. In other words, according to these definitions, every single human embryo – including donated embryos that could be used for scientific research – is an unborn child. Although most of these trigger laws are specific to pregnancy and don’t regulate embryos outside the human body, the idea that life begins at the moment of fertilization could be used to target embryo research, says Cohen. “If you think so, I don’t see why you exempt the destruction of embryos when you ban abortion. For me, this injustice is the same.”

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