Alabama IVF ruling draws attention to technology’s unregulated frontiers
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Vitaly Kushnir’s fertility clinic offers to screen an embryo to predict a baby’s sex, but the service can lead to ethically murky territory, like when a couple wanted it so their first child could be a boy.
It struck him as a sexist motive, he said, and initially he declined. But the couple pushed back, saying that they would simply abort the baby if it was a girl. “I’m not in the business of bringing in unwanted children,” said Kushnir, who owns West Coast Fertility Centers and teaches at the University of California at Irvine. Kushnir, who ultimately agreed to the couple’s wishes, said he thinks there should be some restrictions on selecting a baby’s sex, but in the United States, there aren’t any.
The Alabama Supreme Court’s surprise ruling in February that frozen embryos are legally children has sparked new scrutiny of in vitro fertilization, a common procedure responsible for about 2 percent of births a year in the United States. Alabama lawmakers swiftly responded with legislation aimed at protecting IVF providers and patients from criminal or civil liability, which the governor signed this week. But the firestorm has reopened ethical questions surrounding the procedure, particularly at a time when would-be parents can choose everything from sex to eye color.
Polls show Americans widely support the procedure and other interventions to help people expand their families. But unlike some other countries, the United States hasn’t regulated screening an embryo’s sex or other traits, like intelligence and height. That has left patients and doctors to navigate thorny ethical questions on their own.
IVF is often the last recourse for families struggling to conceive a child, and a single cycle can cost $20,000 or more. The procedure involves extracting eggs from ovaries and fertilizing them with sperm in a lab. One fertilized egg - or embryo - is then transferred into the womb to develop, while others are stored for future use. The majority of embryos implanted by IVF don’t develop into babies, often due to chromosome or genetic defects.
Some experts believed that the debate over whether embryos are morally equal to people had fizzled long ago. Pasquale Patrizio, a professor and physician at the University of Miami’s Miller School of Medicine, made this case in 2009, writing that legislative efforts to grant embryos the status of people had consistently failed. “The era of the embryo ‘wars’ may be coming to an end,” he and co-author Arthur Caplan wrote.
“Now we are in another cycle,” Patrizio said in an interview. “This is really utterly stupid, preposterous.”
Democrats and Republicans have had reasons to avoid delving too deeply into regulating IVF. Prohibiting embryos from being destroyed, for instance, can arguably preserve life but also create obstacles for people trying to conceive by IVF. “It’s fairly unpopular to try to restrict people from having families,” said Glenn Cohen, an ethicist and professor at Harvard Law School.
But the legal landscape changed after the U.S. Supreme Court dismantled the federal right to an abortion in 2022, using language that could also justify prohibiting the destruction of embryos.
Cohen connected the debates over the personhood of embryos to sex selection, saying many people view picking an embryo on the basis of sex as wrong but struggle to explain why. “If you think it’s wrong because of harming embryos that don’t get implanted, that seems to imply that embryos have rights,” he said.
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‘It’s like going to a sandwich shop’
Screening embryos for sex is common in Saudi Arabia and Lebanon, some research has found, while it is restricted in Chile and Australia and banned in China and India. The practice is legal and increasingly popular in the United States, which has become a destination for people looking to conceive by IVF. Foreign nationals used genetic screening before implanting an embryo at higher rates than U.S. residents, a 2017 study found.
The genetic test that reveals an embryo’s sex is designed to detect abnormalities in the number of chromosomes, but it can be performed for nonmedical reasons - like a couple who wants the experience of raising children of both sexes.
Jeffrey Steinberg, a doctor who runs the Fertility Institutes, offers embryo screening for sex and eye color at his clinics in Los Angeles and New York. He said that at least 60 percent of his patients in the United States come from abroad.
“I never really came to the decision that it’s ethical. I came to the decision that it’s not unethical,” he said. The tests he offers are add-ons to screenings for genetic disorders, he said. “It’s like going to a sandwich shop and ordering a ham sandwich with cheese. Do you want to put pickles on?”
Steinberg said he is comfortable with the lack of regulation on what procedures can be offered. “The best policy is to keep their noses out of people’s reproductive lives,” he said of politicians.
Some companies offer DNA tests that scan an embryo for genetic variations, making predictions about future outcomes that can extend beyond purely medical considerations.
Genomic Prediction, for a time, offered tests that screened for intellectual disability and abnormally short stature, according to a cached version of its website, but no longer does so. The New Jersey-based firm currently offers a test to predict conditions like cancer and schizophrenia.
“This test does not change that risk; it only reduces it in the sense that a patient can choose an embryo with a lower overall risk compared to another embryo,” Genomic Prediction said in a statement, adding that such screening has proved to be accurate in multiple peer-reviewed studies.
MyOme, a DNA testing firm, once explored projecting an embryo’s future educational attainment and household income, according to a 2021 paper in the New England Journal of Medicine. The company responded at the time that it didn’t predict “nondisease traits,” finding that “these issues distract from our health-focused conversation and mission.”
A MyOme spokesperson said it is developing a test that predicts conditions like breast cancer and coronary artery disease, but it is not commercially available. The company said risk scores from such an exam “will transform health care.”
Researchers have also linked genetic variations to people who have sexual activity with the same sex. Julian Savulescu, a philosopher at the University of Oxford, has observed that future research might identify “causal genes” that could be “modified through gene editing, intentionally reducing or increasing the probability” of same-sex behavior. He called for a “robust ethical framework” for how such knowledge is used.
Critics of available tests that examine multiple genetic variations - known as polygenic conditions - say they could perpetuate social inequalities, allowing wealthier prospective parents to “select offspring with desirable traits or against those with undesirable ones,” two medical scholars wrote in a fertility journal in 2022.
Advocates of polygenic screening argued in the same journal that would-be parents have a right to such information and that no harm can come of it. “By preventing parental choice, the State or profession engages in an indirect form of eugenics,” wrote the advocates, Savulescu and Nathan Treff, a co-founder of Genomic Prediction.
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‘This is an industry’
Ethical views within the profession continue to evolve. The American Society for Reproductive Medicine, a trade group, published an opinion in 1999 concluding that genetic testing for sex selection alone “should be discouraged.” By 2022, the group’s ethics committee had softened that stance by saying gender selection “should not be encouraged for nonmedical indications.”
Screening for polygenic conditions “remains inaccurate and unreliable,” ASRM wrote last year.
Sean Tipton, ASRM’s chief advocacy and policy officer, said the group’s mission is education, not regulation, and it isn’t responsible for settling such ethical questions.
“We are perfectly happy for people to wrestle with those decisions,” Tipton said. “What makes us nervous is a bunch of old White guys in Montgomery [Alabama] deciding who gets to make those decisions.”
The Alabama Supreme Court’s ruling fueled anxiety in an industry that has expanded with hefty infusions of investor cash. Companies in assisted reproductive technology have raised more than $2 billion since 2017, according to data provider PitchBook, and some are hitting back against the Alabama decision.
Kindbody, a network of fertility clinics recently valued at $1.8 billion, said in a statement that the ruling “threatens to undermine the rights of patients and the medical ethics that are fundamental to our profession,” adding that it “must not set new precedent.”
Kushnir, the fertility doctor in and professor in Irvine, said he is still processing the ruling. “I don’t think an embryo is a person, but I do think an embryo deserves special status,” he said.
Even selecting the sex of a baby - a service he advertises - makes him uneasy, Kushnir acknowledged, and he believes there should be some curbs on doing it without a medical reason. But if he didn’t offer this service, he said, patients would go to his competitors.
“You’re cornered into it,” he said. “This is an industry, at the end of the day.”
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