The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, which ended the federal constitutional right to abortion, opens the door to new attempts to protect embryos created during in vitro fertilization (IVF) according to Henry (Hank) Greely (BA ’74), the Deane F. and Kate Edelman Johnson Professor of Law and the director of the Center for Law and the Biosciences. Greely recently published an article in the Journal of Law and the Biosciences titled The death of Roe and the future of ex vivo embryos in which he analyzes how the political winds that gave force to Dobbs are bringing increased scrutiny to IVF, specifically the human embryos that are created—and sometimes discarded—during assisted reproductive technology.

Here, Greely discusses some of these developing issues, including the likelihood that activists might secure new limitations on IVF, particularly in connection with a related procedure, preimplantation genetic diagnosis, or PGD.

Did Dobbs open new legal avenues to groups that might now want to push for greater protection of human embryos or is it more a question of the political winds that gave force to Dobbs now blowing toward IVF?

I think the answer is mainly politics, although Dobbs did close off some possible protections for IVF that weren’t likely to happen with the current makeup of the Supreme Court. But one might have imagined a Supreme Court that would have expanded on, rather than contracted, reproductive freedom and reproductive liberty rights in a way that would have included embryos that are used for IVF, but that is not this Court.

Embryos outside of a woman’s reproductive system have not yet been the subject of any real court activity in the United States. I think Dobbs makes that quite likely to change. The 49 years of Roe v. Wade created a substantial political movement. It grew slowly, and with time, and a lot of effort by those who were dedicated to the issue of protecting what they call unborn babies. Many of the people with that perspective think once there’s a fertilized egg, that’s an unborn baby and it needs protection. Roe has obviously been the main target of the pro-life groups and now that that target is out of the way, what’s next for them? I think going after some of the uses of ex vivo embryos— embryos that are outside a woman’s body—probably makes sense, both logically and politically, for many of those groups.

What is the current legal landscape governing embryos that are created, but not implanted, during IVF?

In most of the world, IVF and other forms of assisted reproduction are explicitly regulated. In the United States, regulation is almost nonexistent. The only federal law is one that requires clinics to report their results, although not all clinics do so, because there are no penalties for failing to report your results. A few states have banned research with human embryos. For almost 30 years now, the federal government, through an appropriations amendment, has banned federal funds being used to destroy embryos in research. In 1986, Louisiana decided that embryos could not be intentionally destroyed. There, every viable extra embryo created as a result of IVF is frozen and kept indefinitely. In Hurricane Katrina, rescue boats were dispatched to save embryos that were frozen in liquid nitrogen. Maybe this has made IVF a little bit more expensive in Louisiana, but it doesn’t seem to have affected the IVF industry significantly there. Louisiana is the only place in the U.S. that’s had any significant regulation of IVF so far.

Post-Dobbs, though, do you see any other states following Louisiana? 

As far as I know, no bill has been passed that clearly limits the use of ex vivo embryos in assisted reproduction. But such bills have been introduced. Personhood amendments went through a period of vogue about 10 years ago and were introduced in several states including Mississippi and Colorado. They were beaten, in part, because the opponents said, “Hey, this is going to mess up IVF.”  Frankly, I don’t think most of these attempts at legislation will pass because Americans like IVF. The pro-life side of this argument likes babies. They want people who want to have babies to have babies. And IVF makes that possible. In this country, there are over a million people who exist only as a result of IVF.

Nevertheless, your article does discuss some areas where pro-life advocates might be successful in securing laws protecting certain types of embryos.

There are political and legal openings for states to try to limit IVF, namely to protect certain embryos from destruction. One path would be the Louisiana path, although that can’t be very attractive because all those embryos are frozen in liquid nitrogen perpetually. That doesn’t seem like a win for anybody except manufacturers of liquid nitrogen. Another tactic—and this was tried by Italy—would be laws saying that every apparently viable embryo has to be transferred to a uterus, which would mean that you’d make one or two or at most three embryos at a time.

I think we more likely would see limitations on an aspect of IVF, called PGD, preimplantation genetic diagnosis. When I tell people about this, they think it’s science fiction. It’s actually been in clinical use since 1990. With PGD, you make embryos through IVF, and then you take a few cells from that embryo, six or seven days after fertilization, and you do genetic tests on the cells. PGD can be used to determine which embryos will have a genetic or chromosomal disease like Down Syndrome, cystic fibrosis, sickle cell anemia, or Tay Sachs disease. At that point, prospective parents simply choose not to transfer those embryos.

In the days before Dobbs, one of the strategies of the pro-life forces was to propose laws banning abortion on particular grounds, for example the fetus’ sex, race, or disability. I can imagine the people who are concerned about protecting embryos trying to apply that line of reasoning to PGD. That has more political appeal. It wouldn’t prohibit all of IVF by any means, and it wouldn’t prohibit all of PGD, although it could prohibit the main reasons or reasons that many people would want to do PGD, which is to try to avoid those diseases.

How would laws governing which embryos are – or are not – implanted be enforced?

In the context of abortion, it is a pretty high standard to show that a doctor knew a woman was choosing an abortion solely on the basis of sex, race, or disability, And frankly, if I were an obstetrician faced with that kind of situation, as part of the informed consent, I’d say, “If you tell me that you’re only aborting this fetus because of one of these reasons, then I cannot legally perform the termination.” Enforcement could also be a problem with PGD, though in a way it’s a lesser problem. Let’s say there are 10 embryos, which is not unusual, and the couple, or the woman, picks one of them, the question is then, “Why that one? Why didn’t you pick this other one that would’ve had trisomy 13?” So, might be a little easier to enforce with PGD than it is with abortion, but it’s never going to be really easy to enforce.

In your 2016 book The End of Sex and the Future of Human Reproduction, you predict that a large proportion of human pregnancies will one day result from in vitro gametogenesis, or IVG, the creation of sperm and eggs from skin cells or other types of cells—no sex required. That’s a pretty startling prediction. How far away are we from that world and do we want such a world? 

There are about five labs around the world that are focusing on this. It has been done in mice. They’re getting closer to making human eggs and sperm from human skin cells. It involves a process called induced pluripotent stem cells, one of the most exciting things in human biology and medicine that’s happened in this century. In theory we could take cells from your skin, turn them into liver cells, kidney cells, heart muscle cells, brain cells, and put them back into you. Your immune system would recognize those cells as you. And yes, with this process, you can also create sex cells. I think there’s no reason to think it will be impossible in humans, but reproduction varies a lot from species to species.

The main reason I think we’ll want to do it is for the millions of couples who desperately want genetic children of their own, but cannot because one of them doesn’t have eggs or sperm. With this process you can make as many eggs as you want. Hundreds, thousands, millions. Let’s say you make a hundred embryos, and you do a whole genome sequence testing on a hundred embryos. Right now that would cost about $400,000, but in 20 years it will cost about $400. And then you tell the parents, “What do you want to know about these embryos’ genes? Do you want to know about long-term risk of Alzheimer’s or breast cancer or colon cancer? What about skin color, hair color, or eye color? Do you want to know if it is a boy or a girl? Do you want to know something about personality?”

Now the fear here is “super babies.” But we don’t know how to make super babies. And we know almost nothing about the genetics of enhanced intelligence or any other behavioral traits. And I don’t think we’ll ever be very good at it.  Human brains are arguably the most complicated physical object we know of in the universe.  But in 20 years we may be able to say, “This embryo has a 13 percent chance of being in the top 10 percent in LSAT score”. Of course that means it has an 87 percent chance of not being there.

Henry T. (Hank) Greely specializes in the ethical, legal, and social implications of new biomedical technologies, particularly those related to genetics, assisted reproduction, neuroscience, or stem cell research. He is a founder and [immediate] past president of the International Neuroethics Society; a FORMER member of the Multi-Council Working Group of the NIH’s BRAIN Initiative AND FORMER CO-CHAIR OF ITS NEUROETHICS WORKING GROUP; chair of the Ethical, Legal, and Social Issues Committee of the Earth BioGenome Project; and chair of California’s Human Stem Cell Research Advisory Committee. He chairs the steering committee for the Stanford Center for Biomedical Ethics and directs [both] the law school’s Center for Law and the Biosciences. Greely is also a professor (by courtesy) of genetics at Stanford School of Medicine.