Two weeks later the US Supreme Court overturned the federal right to an abortion, Ye Yuan heard from a woman who wanted to reverse her decision to donate her embryos to scientific research. The woman—who contacted Yuan anonymously through a fertility counselor—was fearful that if the law in Colorado changed to make it illegal to discard or experiment on human embryos, then she would be forced to have hers frozen indefinitely. In a year, or five years, might a law change to stop her from having the final say over what happened to them?
In states where human embryonic research is legal, people undergoing IVF are often given the choice to donate any excess fertilized embryos to scientific research. These are sometimes used to search for potential treatments for diseases such as diabetes or, as in Yuan’s case, to research ways to make IVF more successful. “Those discarded embryos are really one of the key pieces for us to maintain the high quality of our platform here,” says Yuan, who is research director at the Colorado Center for Reproductive Medicine (CCRM). But in the wake of the Dobbs verdict, he is worried that people will be less likely to donate their spare embryos for research and, down the line, that embryonic research could become the next target of antiabortion campaigners.
“It’s like you’re a little girl living in a dark room. You know there are bad guys outside but you’re not too worried because the door has been locked,” says Yuan. “But then somebody tells you that the door has been unlocked.” Yuan fears that anything that slows down access to human embryos will ultimately end up slowing progress in IVF, which is responsible for between 1 and 2 percent of all US births annually.
The majority opinion written by Justice Samuel Alito does not single out IVF or human embryonic research, but his choice of words to describe abortion could be seen as also being applicable to embryos outside the body, says Glenn Cohen, a bioethicist and professor of law at Harvard Law School. The right to an abortion is distinct from other rights, Alito notes in the opinion, because it destroys “potential life” and the life of an “unborn human being.”
“The same thing that he uses to distinguish abortion seems to me completely applicable to distinguishing embryos,” says Cohen. “To me it makes it very, very clear afterwards Dobbs that any state that wants to prohibit the destruction of embryos as part of research is free to do so.”
The wording that legislators use to describe the beginning of human life is also important. In at least nine states, trigger laws—pieces of legislation designed to restrict abortion quickly after the fall of Roe—include language that implies an egg cell becomes an “unborn child” or “unborn human being” at the precise moment of fertilization. In other words, according to these definitions, every single human embryo—including donated embryos that might be used in scientific research—is an unborn child. Although most of these trigger laws apply specifically to pregnancy, and so do not regulate embryos outside of the human body, the idea that life begins at the very moment of fertilization could be used to target embryonic research, says Cohen. “If you have that view, it’s not clear to me why you would exempt the destruction of embryos if you prohibit abortion. To me, that wrong is the same.”