Louisiana’s ban on destruction of IVF embryos strips patients’ options
Every month, Ligou Gong and his team prepare to ship hundreds of embryos from their Louisiana fertility clinic to a Texas storage facility nearly 550 miles away.
The routine requires meticulous preparation by Gong and two other embryologists with Audubon Fertility, who spend about a week logging details about each embryo before packing them into tanks that must be kept at minus-196 degrees for the eight-hour trek.
The majority of Louisiana’s fertility clinics have been shipping patients’ embryos out of state for years, with some ending up in Florida and others as far away as Nevada. The time-consuming and costly process is a result of a 1986 state law that banned the destruction of embryos created during IVF. Louisiana has been the only state with such a restriction, though the Alabama Supreme Court put clinics there on alert when it ruled last month that frozen embryos are people and anyone who destroys them could be held liable. Alabama lawmakers responded last week with legislation to protect both patients and providers doing IVF.
For years, Louisiana’s law has added logistical, emotional and financial complications to an already taxing medical process, according to IVF patients, fertility providers and reproductive rights attorneys interviewed by The Washington Post. As clinics coordinate regular bulk shipments, patients’ have limited say about the fate of their embryos.
The system provides a window into what could happen in other states that pursue laws regulating embryos’ personhood and legal rights, with Alabama’s ruling heightening concerns. While the Louisiana law was originally intended as a compromise between religious groups skeptical of IVF and the medical community, some now worry its interpretation can be stretched much further, akin to the Alabama ruling, which would pose more hurdles for those seeking reproductive care.
“The legal scheme here is burdensome, expensive and stressful for patients and for providers,” said Ellie Schilling, a Louisiana-based reproductive rights attorney. “But at least, as of now, you can transfer embryos to another state.”
If more states place restrictions on IVF embryos, fertility providers said patients will be left with fewer choices.
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‘A very personal process’
Louisiana considers an IVF embryo to be a “juridical person,” which prohibits them from being “intentionally destroyed” in the state, Schilling said. It’s narrower than Alabama’s ruling, because while juridical personhood grants an embryo limited legal rights, it still isn’t considered the equivalent of a person. Alabama’s ruling declared frozen embryos to be children, meaning that any intentional or unintentional harm to an embryo is the legal equivalent of harming a child.
Louisiana’s law applies to all “viable embryos.” But what the law dictates as viable is sometimes different from what medical professionals consider viable.
The law states that any IVF embryo that continues developing for 36 hours after fertilization is considered “viable” and becomes a “juridical person” that cannot be destroyed. However, medical providers say that many of those embryos carry genetic abnormalities that will never result in successful pregnancies. Healthy embryos sometimes go unused, too, because it’s common for patients to have leftover embryos from the IVF process.
This leaves Louisiana’s IVF clinics and patients with few realistic options, Schilling said: An embryo has to be transferred into a patient, stored forever at the patient’s expense or donated to a married couple. (Embryos cannot be donated to science or to single people.)
Instead, the law has led three of Louisiana’s four major fertility clinics to ship all unused embryos to out-of-state storage facilities. Those shipments occur between six and 12 months after the embryos are created. The fourth clinic offers patients the option to keep embryos in Louisiana, but encourages out-of-state storage beyond a year or two.
While embryos can be retrieved from the out-of-state facilities at any time, some say the system further complicates patients’ deeply personal decisions.
Jessica M., who spoke on the condition that her last name be omitted for privacy reasons, produced two embryos during her first round of IVF in 2022 in New Orleans. Genetic testing later determined that neither was healthy enough to be transferred to her uterus, leaving her devastated, she told The Post.
About a year later, she and her husband received a notice telling them they would be responsible for paying to store their embryos.
“I was like, ‘What embryos? Those weren’t viable,’” she said. “I did not realize the intricacies of the law around IVF here. I assumed that because they weren’t viable, the clinic would take care of discarding them.”
Suddenly, as she and her husband were preparing to undergo another round of IVF, she was reminded that the last attempt had been unsuccessful.
“It is really painful to have to remember that, one, we were trying to have a baby and we were not successful with that first round, and, two, that we have to keep paying all of these fees instead of putting it toward the second round,” she said.
Jessica is pregnant after her second round of IVF produced four embryos, one of which was healthy and transferrable. This time, she and her husband knew they would have to manage the disposal of the remaining embryos that, while not medically viable, are considered viable under the law.
They began the process last month, quickly running up hundreds of dollars in fees as they arranged for the embryos to be shipped to another state that can legally dispose of them. The process was tedious. Since Louisiana clinics can’t discuss discarding embryos, the couple had to complete paperwork for new contracts with an out-of-state company they’d never dealt with before.
“It’s so much going back and forth with all these different companies,” Jessica said. “It’s been a mess … especially when you’re the one who is trying to get pregnant.”
Jessica’s husband, Derek, agreed.
“It lacks common sense, and depending on your particular situation, it lacks empathy and compassion,” he said. “It’s a very personal process that people and couples go through, and to not have that autonomy, and just that personal, quiet control to take care of it as you see fit without all of this other red tape, is discouraging.”
For others, the stress begins even before the process has begun.
Emma Campbell, 30, recalled her clinic’s lawyer asking whether she planned to store or donate her future embryos before she started IVF. “You have to either donate them to another family or send them to another state. It just seems unnecessary, it’s not benefiting anybody,” Campbell said. “It was a lot of decisions before you even get into this whole situation.”
Leigh D’Angelo, 34, wants to begin IVF soon. But her medical history suggests that some of her embryos may carry genetic abnormalities, and the extra step of organizing their out-of-state disposal feels cruel, she said. “I can’t believe I live in the one state that has this requirement.”
Louisiana IVF clinics work to minimize the burden patients face, and the shipping of embryos around the country is not uncommon, providers told The Post. Years of practice has helped them develop routines.
But the law complicates the process due to the sheer volume of embryos that are shipped because of the state’s restrictions, said Nicole Ulrich, a fertility doctor at the New Orleans-based Audubon Fertility.
“It is quite cumbersome for our embryology team. It creates a lot more work for them,” Ulrich said. “It can be challenging at times. There are environmental implications, too. We’re shipping more than we would probably need to otherwise.”
Beyond creating extra work, the law “restricts autonomy” for patients, said Preston Parry, a fertility doctor with Positive Steps Fertility in Shreveport. Louisiana is also one of 17 states with a near-total abortion ban that took effect soon after the Supreme Court overturned Roe v. Wade.
“Louisiana women have been held to a different standard for a long time when it comes to reproductive care,” Parry said.
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A push for change
Despite the challenges for clinics and patients, the 1986 law is what allowed IVF treatment to move forward in the state, said Jay Huber, a fertility doctor at the Fertility Institute of New Orleans, which also has clinics in Baton Rouge and Mandeville.
As IVF treatments became more common in the 1980s, there was staunch resistance from some Louisiana religious groups. One of the main objections to IVF was the idea of discarding embryos, so fertility doctors and IVF opponents compromised and prohibited their destruction.
It was hailed as a victory for the medical community at the time, Huber said, since it allowed doctors to perform IVF in the state. “To win the war, per se, of being able to do IVF and provide our patients with the opportunity to build their families, we had to kind of lose that battle.”
Still, the Alabama ruling has brought Louisiana’s decades-old law into sharp focus for the state’s fertility providers. IVF has been able to continue in Louisiana because its law grants embryos only limited legal rights, said Schilling, the reproductive rights lawyer. There is no criminal liability in Louisiana if an embryo is unintentionally harmed.
But the language of Louisiana’s law may leave too much open to interpretation, said John Storment, a fertility doctor at Fertility Answers, which has Baton Rouge and Lafayette clinics. Louisiana’s law should be clarified so “we don’t have something similar to what happened in Alabama.”
“We want to make sure that an embryo does not become the equivalent of a child,” Storment said, adding that providers are working to propose amendments to state lawmakers on the Louisiana human embryo statute.
Providers say they’re also closely watching the Alabama ruling’s ripple effect. If restrictions around embryos - whether narrow like in Louisiana or broader like in Alabama - grip other states, IVF clinics could face new limitations on where embryos can be stored and shipped. Clinics are willing to ship patients’ embryos farther out if neighboring states enact restrictive embryo laws, but it would increase costs and add hurdles, placing reproductive medicine further out of reach for some, Parry said.
Meanwhile, some Louisiana clinics last week received calls from women in Alabama, hoping to move their fertility care to the nearby state.
“We’re definitely trying to do everything we can,” said Ulrich, the New Orleans-based fertility doctor. “But things are tenuous here, too.”
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Justine McDaniel and Alice Crites contributed to this report.
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Video: Protesters rallied on Feb. 28 outside Alabama's capitol in Montgomery after the state's Supreme Court ruled frozen embryos could be legally considered children.(c) 2024 , The Washington Post
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