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HEALTHWATCH

Healthwatch is a monthly feature focusing on a health- or fitness-related topic with a Jewish angle. Have a suggestion for a potential Healthwatch subject? Email news@stljewishlight.org.

St. Louis doctor: Roe reversal will not affect IVF treatment

Dr. Silber’s commentary is in response to the July 27 article, “Groups launched to help Jewish couples with IVF face an uncertain landscape after Roe reversal.” He notes his commentary only applies to whether the overturn of Roe vs. Wade affects IVF and is not intended to make any statement on any other aspect of women’s reproductive rights.

BY DR. SHERMAN J. SILBER

The reversal of Roe vs. Wade will not affect IVF treatment either for Jews or for non-Jews. Despite the journalistic hysteria resulting from this controversial Supreme Court decision, it is completely wrong to scare the infertility public into thinking that their ability to have babies via IVF will be in any way impeded. Let me explain point by point: 1) While it is true that many IVF clinics overstimulate the patient to produce huge numbers of eggs and huge numbers of embryos, this is a very poor practice that needs to be curtailed anyway. Doctors who are more sophisticated in understanding how the ovary truly works will use mini-IVF stimulation. That way the patient has a safer and more pleasant IVF experience, and the baby rate per egg is 4 to 5 times higher. So, you get better results with fewer eggs. Minimal stimulation (if encouraged by the Dobbs decision) will actually improve IVF results, as well as minimize the number of unwanted extra frozen embryos that patients might otherwise want destroyed. 2) The states that have anti-abortion laws will allow abortion if the mother’s health or life is at stake, like with ectopic pregnancies or eclampsia. So that couple who was using a surrogate in Ohio still could have used that surrogate in Ohio and did not have to look for a surrogate in Canada. 3) I will state no opinion on the Roe decision. However, the Mississippi law that outlawed abortion at 15 weeks was perfectly consistent with the Roe vs. Wade decision. Roe vs. Wade did not allow all abortions at every stage of pregnancy. It carefully broke pregnancy into three stages.

During the first third of the pregnancy, when the fetus could not possibly live outside the mother’s body, the woman’s right to decide what to do with her body took priority.

After the first stage (13 weeks to 26 weeks) it was considered a complex balance between the rights of the pregnant woman and the rights of the fetus. It did not guarantee a right to abortion after 15 weeks.

During the third stage (26 weeks to term), the fetus’ rights were considered by Roe to always overrule the pregnant woman’s rights. So the Supreme Court did not have to overturn Roe vs. Wade, as Justice John Roberts argued, in order to uphold the Mississippi law.

Now that Roe vs. Wade has been overturned (although it did not have to be), states can disallow abortion at any stage, but even these states all will allow for abortion to save the health or life of the mother. The Supreme Court did not abrogate abortion. It just turned it over to the individual states to make their own laws. So at least half of the states will allow abortion for any reason, just like they always did. 5) What about the status of extra frozen embryos in IVF centers?

First, there should not be very many extra “leftover” frozen embryos if the proper minimal stimulation protocols are used.

Secondly, Roe does not at all affect under any new legislation by any state the frozen sperm and eggs, which can be destroyed with no legal implications. For embryos, they do not have to be destroyed even if the couple does not want them. They can either be given up for adoption, or just held indefinitely as many couples decide years later that they want more children and consider it a benefit to have extra embryos frozen from when they had younger eggs.

Finally, the patients are the ones who own the embryos. The IVF center is just a custodian and has to do what the patient requests. So the patient who wishes to destroy his/her embryos can simply direct the IVF center to send them to another institution in another state. That is the law. The patient owns the embryos, and they can have them sent anywhere. That is how we always handle patient requests to destroy their embryos. We have no choice but to follow their instructions to send them elsewhere where embryos could be destroyed if the patients so request. 6) What about the incorrect implication from the article that overturning Roe will be a problem for Orthodox Jews? Orthodox Jews will always transfer to the wife every single embryo, even if it means having 20 children. There is never a request from an Orthodox Jew to destroy an embryo. Also, there is no Jewish law injunction forbidding embryo adoption. According to Talmudic tradition, the soul does not enter the embryo until six weeks of fetal life. So Orthodox Jewish law would have no problem with whatever is done with the early embryo, including adoption.

We have been practicing right-to-life IVF from the inception of our center in the late ’70s because we found that it did not bother pro-choice couples for reasons described above, and it was a relief to right-to-life couples. As President Barack Obama said, “the abortion issue divides us.” He also said that neither he nor any pro-choice person in their right mind would like abortion. Roe vs. Wade was not meant to legalize all abortion. It was an attempt to make a compromise between two very strongly held opposing viewpoints. I take no political view on this but respect the issue as a potential divider. Nonetheless we have practiced IVF from the right-to-life view for over 40 years, and it has had no impediment on patients who were pro-choice or right-tolife. The legally sketchy Roe decision, and the equally sketchy Dobbs decision, should have no effect on IVF and infertile women wishing to have children with IVF.

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Dr. Sherman J. Silber is director of the Infertility Center of St. Louis at St. Luke’s Hospital.

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