SART Fertility Experts - Advocacy and Public Policy

This episode of SART Fertility Experts delves into the impact of the Dobbs decision on reproductive health, particularly IVF, and the broader legislative threats to assisted reproductive technologies (ART). Dr. Timothy Hickman, speaking with Sean Tipton, the ASRM Chief Advocacy and Policy Officer, and Jessie Losch, ASRM Director of Government Affairs, discusses the legal and ethical implications of personhood laws, public support for IVF, and challenges faced by both patients and healthcare providers. They emphasize the importance of advocacy, bipartisan cooperation, and voter engagement in influencing policy. Practical advice is offered for professionals and patients to collaborate in raising awareness and protecting access to reproductive care. The episode underscores the critical role of public involvement in shaping the future of ART.

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For more information about the Society for Assisted Reproductive Technology, visit our website at https://www.sart.org

Hello, this is Timothy Hickman, past president of SART, the Society for Assisted Reproductive Technology, and we're here today with Jessie Losch, director of government affairs, and Sean Tipton, chief advocacy policy and development officer on the SART Expert podcast series. So we're so thrilled to have you both. Thanks so much for coming today.

Thank you. Happy to be here, Dr. Hickman. You know, the public is very aware that we happen to be in the news a lot.

I mean, you don't hear about news from the ophthalmologist too often, or the orthopedic surgeon, or the GI doctor, but you hear a lot about reproductive endocrinology, infertility, and specifically IVF. So Jessie, let me ask you, as far as some of the key events that have happened in the past, I would imagine that the Dobbs decision probably played some role in this. Can you kind of tell us your thoughts on that? Of course.

Thank you. I agree. I think the Dobbs decision was really, it drew sort of a line in the sand, both in terms of the legal landscape in the States, but also in terms of providers and specifically reproductive medicine physicians sort of realizing both their power as advocates on the state and national level, and also in some sense the responsibility to advocate.

So I know after the Dobbs decision, we got sort of inundated with physicians asking how they can help, and also saying, you know, we haven't been in this position before. Yeah. Yeah.

And Sean, maybe tell us how the Dobbs decision is related to IVF. So a lot of people, maybe you can first explain what the Dobbs decision was and what the implications would have for this field of reproductive science. Sure.

So the Dobbs decision was a Supreme Court case that, it really was an abortion restriction. It overturned an existing 45-year nearly precedent, the Roe v. Wade case, which said that Americans have a constitutional right to make their own decisions about reproductive care. The Dobbs decision erased that right at the federal level, meaning that smaller jurisdictions such as states and even cities and towns could in fact pass laws that restricted people's rights to have health care.

And that's really almost all, on the one hand, that's all it did. And so everybody talks about it and thinks about it primarily in an abortion context. However, that same lack of constitutional protection applies to fertility care.

So where it used to be that Congress or state legislatures could not pass something that said IVF will be illegal or IVF will be only available to married white women between the ages of 25 and 27 or whatever the restrictions are. Those would have been deemed unconstitutional by the courts. That is no longer the case.

So legislative bodies now have the ability to enact those restrictions. So pertaining to IVF, are there threats that IVF may be restricted in some areas? Sure. There are an active bill in Congress that gets introduced almost every year, which is essentially a Life Begins at Conception Act.

That would have tremendous implications for how IVF is practiced. If by law, you have to treat a fertilized egg in a freezer the same way as you do an existing person. There are enormous ramifications for that.

I guess the clear implication is that unfortunately, human reproduction is not 100% efficient. So there's no way, even if we did everything we could with science, we'd ever get to the point of not having an embryo always make it to a baby. Therefore, that's a big problem.

Policy and laws need to be based on reality. And in this case, anyone who wants to believe that a fertilized egg is the same as a baby, I'd invite them to go try to change that fertilized egg's diaper, and then tell me that they're the same thing. I think also it takes the choice away from patients and families, and it leaves physicians without the ability to tailor care.

You know as physicians, even as ophthalmologists, you don't get your five patients that you see every morning, you're not going to be able to treat them in the exact same way. And if these bans or even restrictions are passed, then you're not going to be able to provide individualized care based on an individual patient's specific needs. The other kind of threat that I anticipate that we're going to have to continue to deal with are going to be attempts to restrict patients and physicians' rights to make decisions about their reproductive tissues, specifically to say you can't choose to discard an embryo that you have deemed non-viable, doing PGT testing, perhaps restrict mandating that you only fertilize or end or transfer one embryo at a time.

Again, things that are possible to accommodate, but they consign patients to suboptimal care. Right, right, exactly. Well, let's go on to maybe another case in point that was in the news a while ago, but it had incredible ramifications.

And that's what happened in Alabama. Who would like to talk about just the history of that case? I'll do the fact pattern first. So what happened in Alabama was in a fertility clinic, in sort of an old school model, which was housed in a hospital, which used to be very common, but now it's less so.

A patient, we think a psychiatric patient, got into the lab and it was a lab that did the pathology for the hospital and the embryology, got into that lab, stuck their hand in a cryotank, pulled out some straws with embryos in them. Touching a liquid nitrogen tank doesn't feel very good, so they very quickly dropped them and destroyed the embryos in the process, unfortunately. So the patients pursued a lawsuit that included not just sort of negligence charges against the hospital and the clinic, but also trying to bring a wrongful death case.

The trial court in Alabama said that it was not an appropriate case to bring a wrongful death because they were frozen embryos, they were not children. The Alabama Supreme Court ruled otherwise. The result of which is all IVF in Alabama stopped for a while until the state legislature there could pass a new law that essentially granted immunity to healthcare providers providing IVF care.

So it's a workable fix. It's not one that we liked a whole lot, but importantly, it allowed the clinics to get back to work there. What did the reaction of the nation, Jessie, tell us about how people feel about IVF? That's a great question.

I think notably, just to add to Sean's background, is this was very specific not only to this kind of negligence. It wasn't a physician discarding embryos, it truly was an accident. But also Alabama itself had passed a ballot measure, wrongful death of a minor child.

And so the Supreme Court was able to use that existing ballot measure to ascribe personhood or to ascribe minor child status to the embryo. That was passed in the 1800s, if I remember correctly, is that correct? This specific one was passed in the 80s. The wrongful death of a minor child.

But the wrongful death statute that they applied was in 1972. Correct, which clearly was way before IVF was even a concept. And I think that what this fix it law, this protective law, does not address the personhood status of an embryo.

There was an immediate outcry, and I think it touches on what you brought up at the beginning, Dr. Hickman, which was this realization on a national level, even a global level, that IVF is under threat. I think even with the Dobbs decision, there was some, I don't want to say complacency because that sounds judgmental, but sort of an assumption that yes, abortion is under threat, even contraception. But people like IVF.

And IVF can be sort of separate from the rest of the reproductive health care spectrum. And I think what this LePage decision in Alabama did was it absolutely decimated that assumption. And it really woke people up to the realization that IVF is part of this reproductive health care spectrum that is nationally being politicized and in a partisan level.

Yeah. And I would say that the nice thing I saw from it, the silver lining, if you will, is that we saw bipartisan support that, yes, we love IVF, we want to support it, and we hope that this is going to be codified eventually. Any thoughts on that? Well, there was an immediate, unprecedented outpouring of outrage from the people in Alabama.

And elected officials saw that. Elected officials all over the country saw that and responded accordingly. And there were some partisan permutations because Democrats saw it as an opportunity to further divide the Republican coalition and all this kind of stuff.

But the bottom line was, Republicans had a little bit of a challenge to show their support for IVF without endangering the support that they have enjoyed from the anti-choice community. So that doesn't have to be that hard of a thing to do, but it can be. And yeah, as you were saying, I mean, elected officials from across the ideological spectrum were trumpeting their support and love for IVF.

And so now the challenge is, we're going to make them prove that love, right? Here are the policy stands that you have to take if you in fact support IVF. And saying it is not enough. I think what's fascinating on a physician level as well was that in our office, we really did see support and offers to help from vastly different practices.

So, you know, we got calls from the hematologists and the rheumatologists and the family practice, you know, providers saying, wait a second, not only does this affect our patients, but this might affect our ability to practice as well. Yeah. So what an outpouring.

And I think it was all the public support was incredibly positive. Well, that's one of the chapters in our lives is now kind of past. Let's go to the future now.

What do you see as some challenges that we might have? We've talked about personhood bills, things like that come up all the time. Anything else that we should be thinking about that as our listening audience is thinking, what can I do if I want to get involved and help further this cause and help people have families and et cetera? So I, I'm going to plug us and say that our, our policy shop is small but mighty. And so we are so grateful anytime one of our members and or their patients and staff want to help in this, in this fight.

So contact our ASRM office of public affairs. There are so many different methods to entry here. And we really like to tailor advocacy to an individual's, you know, availability and willingness and interests.

So we are, our, our doors and our emails are always open. You know, it's, it's challenges and opportunities, right? We have challenges. We're going to see policy make some policymakers seek to restrict access and we're going to have to fight that.

On the other hand, you know, we have, we, we just saw a passage of a bill in California to mandate IVF coverage, which is going to bring coverage to 9 million people. And there are lots of states who want to do it. We, you think we're, we've been trying to pass bills like that in Washington and Oregon.

Do you think we're going to leverage the passage in California to try to get that going? You bet we will. And I think we leveraged Alabama and California. So I think, you know, your silver lining, this is really the moment.

Yeah. And, and there are, I think, especially if you're new to this, new to this space, new to the idea of advocacy, there are a couple of things I'd like to say. The first thing is that the first amendment to the U.S. Constitution guarantees a lot of rights.

One of those rights that is often neglected is the right to petition your government for redress of grievances. If you need medical help to have children and politicians are getting in your way, you by God have a grievance and you should, you should address it and you should force them to address it. And there are lots of ways to help with that.

Resolve the patient group, the Alliance for Fertility Preservation, PCOS Challenge, the CAID Foundation. There are lots of patient organizations who will help patients get involved in the advocacy space. And we are there, as Jesse said, to help, to help the professionals.

And we work hand and glove with those groups because there is so much power to a patient and a healthcare provider going together to talk to their elected representatives to say, here's our problems and here's what you, Mr. Legislator, Mrs. Congresswoman, can do to help and to ask them and to make those demands on them. That's why they have those jobs. I will say even more, you know, I was a staffer on the state level and I think that people underestimate their expertise.

You know, so when I was a staffer, if I had a physician come in, I relied on them. They were the experts. It was not me and it was not even my, my boss who was the legislator.

You know, my boss would say to me often, can you call that doctor and find out, you know, why it's important or what language we should put in this bill. So don't underestimate that you really, not only are you the voter, but you are really the expert in this sense. Excellent.

Well, this has been fascinating stuff. I really, really appreciate your time. Do you have any last comments that you'd like to make to our listening audience about policy and ART? I really can't emphasize enough that we are fortunate to live in a representative democracy and that elected officials are supposed to respond to the needs of their constituents.

They can't do that if they don't know what those needs are. Good point. Anything? Make those calls, contact your elected officials.

They work for you. Excellent. Well, thank you so much.

We certainly appreciate your time. This has been a great few minutes we've spent talking about public policy and ART. So again, thanks.

And I'm sure people will be interested to hear this. Thank you. Happy to do it.

The information and opinions expressed in this podcast do not necessarily reflect those of ASRM and its affiliates. These are provided as a source of general information and are not a substitute for consultation with a physician.