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One legal issue that may arise out of the U.S. Supreme Court’s June ruling in Dobbs vs. Jackson Women’s Health Organization is the fate of the many frozen embryos in fertility clinics.
An editorial in the July issue of the New England Journal of Medicine estimates there are tens of thousands of embryos cryo-preserved at in vitro fertilization laboratories, and unused ones are often destroyed.
While some believe the Dobbs ruling will not affect embryos that have not been implanted in women’s uteruses, others say that although the ruling does not mention IVF its reach may determine their fate, particularly where there are plans for their disposal.
“That is a nuance that’s not clear. It will only be clear if things go to trial,” said Rob Francis, Birmingham, Alabama-based executive vice president, health care professional liability, for med mal insurer ProAssurance Corp.
“In certain states, the law can be interpreted to say a fertilized egg or embryo is considered a life, and a clinic’s disposing of that could be considered a criminal act,” said Paula Sullivan, Chicago-based senior vice president with Marsh LLC.
It puts many people in a difficult position with regard to fertilized, frozen eggs, Ms. Sullivan said.
Observers point out that Oklahoma’s law, for instance, which was enacted before the Dobbs ruling, defines an unborn child as “a human fetus or embryo in any stage of gestation from fertilization until birth.”
Also, there is the question of who owns the embryo, said Pete Reilly, Springfield, Pennsylvania-based North American healthcare practice leader and chief sales officer at Hub International Ltd.
What if the embryos are in one state and the mother in another? “There are so many pieces to the layers of this onion, I don’t think there’s an answer yet,” Mr. Reilly said.
Chris Zuccarini, Radnor, Pennsylvania-based managing director of Risk Strategies Co. Inc.’s national health care practice, said the issue may affect other medical specialties such as oncologists, in cases in which it is believed an abortion may enhance a cancer sufferer’s chances of survival.
The controversial U.S. Supreme Court abortion decision in June, which overturned the 50-year-old Roe vs. Wade ruling and held there is no constitutional right to an abortion in the United States, has led to a panoply of state responses that has created uncertainty for medical providers and medical malpractice insurers.