At Texas Fertility Center in Austin, Medical Director and Fertility Specialist Dr. Kaylen Silverberg has been helping people have babies for decades. He’s used to counseling patients on their best options to get pregnant, but these days he’s also having to navigate what impact Texas’ abortion ban will have on his practice.
“Now you really have to pick up the phone, have your lawyer on speed dial, and you need to say, ‘Hey, what do we do about this? What do we do about that?'” Silverberg said.
Texas House Bill 1280 will essentially ban all abortions in Texas, except in the extreme case of saving a mother’s life or a major bodily function that is “aggravated” by the pregnancy. The law, referred to as a “trigger” law, was passed last year with the intent that it would go into effect if Roe v. Wade, which legalized abortions nationwide in 1973, was overturned. That happened on June 24, giving Texas the right to enact its own abortion laws. HB 1280 goes into effect 30 days after the Supreme Court’s judgment, which could be published later this month. However, there are many parts of this law that remain vague to doctors, including whether it will impact fertility treatments.
With the fertility procedure in vitro fertilization, or IVF, fertilization happens in a lab by combining sperm and eggs to create embryos. The goal is to transfer one healthy embryo into a woman’s uterus.
Some legal experts interpret the language in HB 1280 to mean life begins at fertilization. This raises the question: Does an embryo made in a lab carry the same weight as an embryo created in the womb in the eyes of Texas lawmakers?
Raquel Erlandson and her husband, Michael, are among Silverberg’s patients left wondering what choices they will have with their frozen embryos. They have been trying to get pregnant for quite some time and were excited after eggs and sperm retrieval resulted in viable embryos to freeze and later use. But Erlandson says there’s no way she could use all the embryos and have four babies. She’s worried that Texas’ upcoming abortion law will prevent her from discarding some.
“Being told you have to have 20 kids because you got 20 embryos — that’s ridiculous,” Erlandson said. “And then being told that you have to carry something to term that you know is not going to be healthy and have quality of life, that's not fair either.”
On Silverberg’s “speed dial” is Susan Crockin, an expert in fertility medicine law and adjunct professor at Georgetown University Law Center. Crockin says the law is vague but likely won’t apply to embryos created in a lab.
“While the law only appears to address abortion ending pregnancies in a woman’s body, it also talks in terms of life begins at fertilization,” Crockin told KUT. “I don’t think people are wrong to think they are vulnerable, but there is nothing in the Texas law that I see that explicitly addresses embryos outside the body, so I think a reasonable conclusion is that these laws, however dramatically changing the landscape they are, may not apply to IVF embryos.”
The American Society for Reproductive Medicine agrees.
“The statute does not appear to be applicable to IVF and reproductive medicine services prior to implantation of embryos,” the organization wrote on its website.
Understanding the abortion law is not only important for doctors to give their patients legal options but also to protect themselves. Violating HB 1280 can result in a doctor being charged with a first- or second-degree felony, a minimum $100,000 fine and losing their medical license.
Crockin suggests if doctors want to be extra cautious, they should consider freezing sperm and eggs separately or storing embryos in a state without restrictive abortion laws.
Coincidentally, the latter is what Texas Fertility Center, where Silverberg practices, already does.
“It's easy for us because our embryos are stored in Las Vegas, so if a couple wants to discard embryos, they pick up the phone and they call Las Vegas and the embryos are discarded,” he said. “We believe that those embryos are not subject to Texas law.”
But many fertility clinics in Texas store their embryos in Texas. Dr. Christine Mansfield, the medical director at Aspire Fertility in Austin and Dallas, said she doesn't think sending her patients’ embryos out of Texas is necessary right now. Mansfield said she would feel comfortable discarding frozen embryos.
“These laws do not specifically address the disposition of an embryo outside the uterus, so in turn, discarding an embryo in cryostorage does not constitute a prohibited abortion or termination of pregnancy and is not restricted or limited under the current legislation,” Mansfield said.
What is “off the table” for all fertility doctors with Texas abortion laws, Crockin said, is selective reduction. This is the practice of eliminating multiple pregnancies that can sometimes, though rarely, result from fertility treatments. Fertility medication combined with a procedure called intrauterine insemination, or IUI, in which active sperm is inserted into a woman’s uterus, carries the most risk of multiple pregnancies since at the time of the procedure the woman could have multiple eggs. The risk of multiples is rare with IVF since only one embryo is inserted at a time.
"We're just trying to bring life into this world, a healthy life, and some of these laws are making it difficult to navigate those waters and figure out what we're going to be able to do."Raquel Erlandson, patient at Texas Fertility Center
Under HB 1280, if a woman has multiple pregnancies or if a severe abnormality is detected in early pregnancy screenings, she won’t be able to terminate in Texas.
“Well, in the state of Texas, based on these laws that are in effect and getting ready to be in effect, they're out of luck,” Silverberg said. “They've got to pick up and physically leave the state to terminate that pregnancy.”
Erlandson and her husband never imagined that they would have to worry about what is or isn’t legal when trying to have a baby.
“We're just trying to bring life into this world, a healthy life, and some of these laws are making it difficult to navigate those waters and figure out what we're going to be able to do,” Erlandson said.
Erlandson’s journey started with a uterine septum surgery and a round of IVF that failed. Then, she and her husband got pregnant naturally. Since this time no embryo was transferred and genetically tested for abnormalities, she is in the same boat as other women who don’t use fertility treatments. They have to wait up to 11 weeks before screenings can detect severe abnormalities with the developing baby.
Erlandson expects the best, but still questions: “What does that mean for us? Are we going to be forced to move forward with and carry it full term if it's not healthy? That is absolutely terrifying.”
Many doctors share the same concern, and argue that there are medical reasons to terminate a pregnancy.
“If someone has a baby with severe abnormalities, Zika Virus or Anencephaly associated with early death, is it acceptable to terminate that pregnancy or do you have to carry that baby to term, watch it die and have a funeral for it?” said Dr. Samuel Chantilis, a reproductive endocrinologist and fertility specialist in Dallas. “It (HB 1280) didn’t even make an exception for this.”
Raquel and Michael Erlandson’s first child is due this February. The fear of an abnormal pregnancy with restricted choices is unfortunately casting a shadow on what is normally a time of celebration.
“You just feel like you're being punished in a way for just trying to have a family and do something that should bring you joy,” Erlandson said. “And it feels like there's a lot of added stress for no necessary reason.”
Note: To understand how Texas Attorney General Ken Paxton would respond to concerns doctors and patients expressed to us during this story, KUT requested an interview or a statement and did not receive a response.
Correction: A previous version of this story said HB 1280 was expected to go into effect in July. The law goes into effect 30 days after the Supreme Court's judgment, which could be published in July.
