Dr. Leah Kaye, pictured July 8, 2022, at her office in Summerlin, is one of a handful of reproductive endocrinologists (fertility doctors) in Nevada.
Sunday, July 10, 2022 | 2 a.m.
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In the newly post-Roe United States, Las Vegas fertility doctor Dr. Leah Kaye is fielding inquiries from colleagues about how her services could be affected by the loss of the federal right to an abortion.
When the Supreme Court overturned Roe v. Wade in June and gave individual states control over abortion access, that launched “trigger laws” in some states, immediately heavily restricting abortions, and motivated others to begin crafting new laws to seize on the loss of federal protections. And abortion laws that pinpoint the beginning of legal “personhood” at conception — a process that fertility doctors, or reproductive endocrinologists, complete outside the body — could have consequences for doctors who initiate, not end pregnancies.
Nevada has firmly enshrined access to abortions through 24 weeks’ gestation — and after 24 weeks if a mother’s life is in danger — in state law, and no laws here or elsewhere are directly coming for fertility treatments like in vitro fertilization, so Kaye is keeping calm and urging the same. But she’s staying keenly aware of how legislative interpretations throughout the country that life begins at fertilization could ripple into Nevada.
“Right now we are really lucky and it doesn’t threaten us directly, but certainly you don’t have to travel far to see where IVF is potentially being threatened,” said Kaye, one of three clinicians at the Fertility Center of Las Vegas. “We kind of expect to see some traffic from surrounding states, and additionally, it’s so hard to predict what’s going to happen on a federal level. Being from Nevada and being lucky today does not guarantee that that’s going to continue moving forward.”
“It’s going to come down to a lot of the very specific wording of any given bills that were passed,” she added. “Right now, thankfully, IVF is not banned anywhere, despite a lot of the trigger laws. And the main reason is that most of these laws that actually have gotten passed, refer very specifically to ‘pregnancies,’ which implies a uterus is involved. It’s inside a womb already.”
Still, it’s a reasonable worry even for doctors who help women become pregnant. In the July issue of the journal Contemporary Ob/Gyn, Dr. Jared Robins and Sean Tipton, executive director and chief policy and advocacy director, respectively, of the American Society for Reproductive Medicine, struck a palpably anxious tone on the future of fertility care.
“Many of the bills being introduced in statehouses around the country … include language defining a fertilized egg as a legal human entity. The terminology varies, which makes it difficult to generalize, but the danger is clear,” they wrote. “If the legal status of fertilized eggs or early embryos is codified, in vitro fertilization (IVF) procedures may become legally risky for patients, physicians and staff.”
A bill in Nebraska defined an “unborn child” as a human “throughout the embryonic and fetal stages of development from fertilization” until birth. An Oklahoma bill also defined life as beginning at fertilization. Neither law passed this session.
In neighboring Utah, a trigger law defines abortion as the termination of a pregnancy after “implantation of a fertilized ovum,” which Kaye called a vague phrase that may or may not involve a womb. That law, which passed in 2020, is on hold, but only through mid-July.
Another potentially worrisome possibility for reproductive care is what to do with embryos created for in vitro fertilization, which requires egg retrieval, lab fertilization and cultivation into an organism of hundreds of cells, and transfer back into the uterus.
Some eggs do not even make it to the early embryonic stage needed for transfer. Those that do are placed in cryogenic storage for some time. Some are tested for genetic abnormalities that may lead to a failed pregnancy or severe birth defect; if they are not viable, they may be destroyed.
Clinics privately store their own embryos, sometimes on site, sometimes in offsite locations, in liquid nitrogen tanks in highly specialized and controlled conditions. Kaye said she hasn’t heard much from potential new patients, but more from colleagues in more restrictive states asking if more permissive states like Nevada — a state with only about half a dozen reproductive endocrinologists like Kaye — might be able to take in their frozen embryos. But Kaye urges prudence.
Embryos are extremely fragile, making transport and changing of hands tricky for ones that doctors and patients want to develop into babies. And laws are still in flux, which could lead to multiple, risky moves — or not require any at all, even in states with strict abortion laws.
“As time passes, and as we, as a society, see the repercussions and the unintended consequences of overturning Roe, my hope is that our legislators will also realize, ‘Oh, we kind of didn’t mean for IVF to be quite as threatened as it now is,’ and the hope is that there will be additional laws on the books to protect IVF, either at a state or at a federal level,” Kaye said.
And so she is optimistic, as she positions her work as pro-family —as she says anti-abortion activists and legislators also characterize themselves — while staying open-minded should measures like interstate embryo shuffling become necessary. She keeps abreast of developments for uncertain patients.
“Our responsibility as their health care providers is to provide them with options when they come with questions. So this is us doing our due diligence to have a plan B and a plan C and to be able to reassure our patients that it’s certainly not gone unnoticed,” she said. “And that when we may not have all of the answers today, there are a lot of really passionate and sympathetic health care providers out there that want to make sure that whatever needs to happen to take the best care of our patients will happen.”
