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‘No protection’: Missouri advocates sound alarm after IVF safeguards stymied in legislature

Danielle Faith Zoll’s daughter, Makayla, who is now 2 years old, was the result of her sixth embryo transfer. Zoll, 37, of St. Louis, now runs a nonprofit called Making a Miracle which offers support to other families struggling with infertility (Photo provided by Danielle Faith Zoll).
Danielle Faith Zoll’s daughter, Makayla, who is now 2 years old, was the result of her sixth embryo transfer. Zoll, 37, of St. Louis, now runs a nonprofit called Making a Miracle which offers support to other families struggling with infertility (Photo provided by Danielle Faith Zoll).

Danielle Faith Zoll and her husband have one last embryo frozen in Missouri.

Zoll’s daughter, who is 2 years old, was conceived through in vitro fertilization. But during that pregnancy Zoll developed Hellp Syndrome, an extreme and life-threatening case of preeclampsia.

After giving birth to her daughter at 35 weeks, Zoll’s doctor advised her not to do so again out of fear that she wouldn’t survive another pregnancy.

That warning left Zoll and her husband unsure of the best future for their last embryo. And the uncertainty turned to fear after an Alabama Supreme Court ruling in February.

“Because of all we go through, (embryos) feel like more than just this clump of cells, because it’s this hope that you’ll be a parent one day,” Zoll said. “And you lose so much going through infertility.”

Zoll, like many Americans, was shocked when the Alabama Supreme Court ruled frozen embryos were “extrauterine children.” Several fertility clinics in that state immediately stopped IVF for fear of being found liable for wrongful death if they accidentally destroyed an embryo.

Floored by the news and the unknown, Zoll reached out to her state senator, Tracy McCreery, an Olivette Democrat. This is scary, Zoll told her. Can you do something?

McCreery would later reference stories like Zoll’s on the Senate floor, but ultimately wasn’t able to push through legislation to protect the procedure.

A handful of attempts to protect IVF through the legislative process were introduced, but didn’t make it far in either the House or Senate. In part, the reluctance stemmed from a belief that IVF wasn’t in immediate danger, and therefore was an issue for a different year as more urgent matters — and Senate dysfunction — often ruled the day.

But advocates for IVF say the lack of urgency was a mistake. They believe ambiguity in state law leaves IVF vulnerable to the same conclusion reached by Alabama’s highest court.

McCreery’s bill, which would have excluded IVF from any “unborn children” language in Missouri law, never got a Senate hearing.

“Unfortunately in the legislature,” McCreery said, “there just weren’t people willing to have that discussion.”

House Majority Leader Jon Patterson, a Lee’s Summit Republican and a physician, said many Republicans, himself included, are eager to put more protections in place. But in the House, he said IVF legislation came too late in the session to realistically act on what he called a preemptive bill.

“Going forward, protecting Missouri parents’ ability to access in vitro fertilization will be a priority,” said Patterson, who is expected to become speaker of the House next session. Lawmakers, he said, “need to do everything we can to protect access to IVF.”

IVF, the process of collecting a woman’s eggs, fertilizing them with sperm in a laboratory and transferring resulting embryos to her uterus or freezing them for later, has become increasingly common. It gives people the opportunity to both start families later in life and grow families in spite of illness or infertility.

In 2021, more than 97,000 babies were born thanks to assisted reproductive technology, more than double the number a decade earlier, according to the CDC.

While many Missouri Republicans voiced support for IVF, in the wake of the Alabama ruling a few spoke out against the procedure, arguing families should only create as many embryos as they intend to use, running counter to how the process currently works.

“I’ve got a group of colleagues that believe that what happened in Alabama could happen in Missouri,” McCreery said. “But like a lot of things in the state of Missouri, people just cross their fingers and hope that there isn’t a problem.”

‘No protection for IVF’

In an attempt to start answering his clients many questions after the Alabama decision came down, Tim Schlesinger, a surrogacy and assisted reproductive technologies attorney in St. Louis,took to a blog post.

“This case has no direct legal impact outside the State of Alabama,” he assured Missourians.

In a recent interview with The Independent, Schlesinger said this still holds water. But it also stands alongside another truth in Missouri: “There is no protection for IVF right now.”

He’s carefully watched the ripple effect of the Alabama decision move north.

He doesn’t believe IVF is at risk of disappearing in Missouri, but without legislation that protects both patients and clinics, he said it’s not impossible for Missourians to find themselves in a situation similar to Alabama.

Schlesinger knows the topic well. Several years ago he litigated the case that set the precedent for defining an embryo as “property of a special character.”

That case, McQueen v. Gadberry,arose from a custody dispute over embryos in a divorce.

Schlesinger, who represented Gadberry — the ex-husband who didn’t want his ex-wife to use the remaining embryos to create children, and won — said the outcome confirmed patients have the right to decide what to do with their pre-embryos.

But Michael Wolff, a former Missouri Supreme Court chief justice and dean emeritus at St. Louis University School of Law, fears the overturning of Roe v. Wade, a case cited in the McQueen v. Gadberry decision, means the precedent set by the judge’s decision would no longer apply if brought before a court again.

Missouri law states that all life begins at conception. Wolff interprets conception and fertilization to be one in the same in regards to state law, adding that it would simply take “an overeager prosecutor” for Missouri to find itself in a position similar to Alabama.

“I’m not being an alarmist about this, I’m not being an extremist. I’m not saying that everybody should believe that what the legislature says is true,” Wolff said. “But I think you have to take seriously what the legislature says. They were perfectly serious when they wrote it as far as I can tell.”

Schlesinger is hopeful that if a state court was faced with a case similar to McQueen v. Gadberry today, it would come to the same conclusion it did several years ago, since he said that case wasn’t premised on Roe v. Wade.

But, he added, there’s no guarantee the judges now sitting on the Missouri Supreme Court would agree.

“That’s a legitimate concern, and an insightful concern brought up by Judge Wolff, but in my opinion, the overturn of Roe v. Wade should not impact McQueen v. Gadberry,” he said. “Because the reason for the overturn of Roe v Wade was not relevant to what is the character of a pre-embryo.”

Schlesinger said a more immediate impact he’s considering is on doctors.

“The people who live in Missouri and want to have outstanding fertility care in Missouri might be impacted just by physicians reluctant to expand within Missouri until enough time has passed that they see how efforts in this regard are going to shake out,” he said.

Failed legislative attempt to protect IVF

As Missouri senators debated legislation blocking Planned Parenthood clinics from receiving Medicaid reimbursements, McCreery brought forward an amendment that would exempt IVF from Missouri’s current statute which states that life begins at conception.

“I assumed wrongly, stupidly, that when the legislature passed a total ban on abortion, that that would be enough. People would feel like they had their Pro-Life credentials,” state Sen. Lauren Arthur, a Democrat from Kansas City, said during the debate. “What I have since realized is, it’s never enough.”

The amendment never made it to a vote, but it fueled much of the Democratic senators’ filibuster that April evening.

But unlike inside the statehouse, McCreery believes the issue remains largely a nonpartisan one. Conservative voters have reached out asking for her help protecting the procedure.

After the Alabama decision, Republican state Rep. Bill Allen of Kansas City consulted his priest, who encouraged him to look around the church at the children born through IVF.

“That helped square my faith and politics, I’ll tell ya,” Allen said, adding: “To me it was the right thing to do for Missouri families, and I just wanted to protect it.”

In late February he filed legislation that would have clarified the right to IVF. His bill, like McCreery’s, was never granted a committee hearing.

Allen plans to file the bill again next year, if re-elected.

“There may have been election year politics that got in the way this time,” he said. “But with those removed next year, I’m really optimistic that this can get through as a priority.”

Conservative opposition

While IVF remains a fairly bi-partisan issue, some hold-outs remain.

During a Missouri Freedom Caucus press conference this spring, state Sen. Rick Brattin, a Harrisonville Republican, decried the current IVF process as the “reckless storage and disposal of human life.”

Often, several embryos are created at once, in part because many don’t survive to the point of implantation in the womb. It’s common practice to immediately freeze any embryos created, even if the intention is to implant them quickly.

“If you’re getting in vitro fertilization, it needs to be the embryos that are going to be implanted at that particular time,” Brattin said. “I know it’s an expensive process, but creating this huge inventory of life being frozen, I don’t agree with it.”

He proposed that families create an embryo, and then if unsuccessful, come back and create another one. Brattin could not be reached for comment.

After the Alabama decision, many Republicans spoke up in favor of the current IVF process. But others, like Brattin, stood by a long-held anti-abortion belief that embryos should not be stored, discarded or used for science.

During a mid-March Senate debate on an education bill, state Sen. Mike Moon, a Republican from Ash Grove, was asked by Arthur if he believed IVF should be allowed. Moon had proposed an amendment which would have required students be taught that life begins at conception.

“If I were the one with the magic wand, I would have discouraged it because now you’ve got how many fertilized embryos out there? And what happens if that facility where they’re housed loses power and they all die? Who’s culpable?” Moon said. “And so I think we’ve created a problem, and we created it. Only God’s supposed to create in that fashion. And we’ve taken it upon ourselves to do it.”

Abolish Abortion Missouri leader Wesley Scroggins, who has endorsed Moon,called IVF “sinful” at a rally in Jefferson City following the Alabama ruling.

The Missouri GOP website, under a page titled “faith and family,” lists support for “the protection of the lives of in vitro fertilized embryos and all other human embryos from the beginning of biological development” just below its support for marriage between “one man and one woman.”

Asked about IVF during aKSDK interview in March, state Sen. Mary Elizabeth Coleman, a Republican from Arnold and a leading anti-abortion lawmaker, said Missouri already has some of the most “permissive” IVF laws in the country, so she saw no further need to protect the process through legislation.

She noted that since the passage of the Missouri Stands for the Unborn Act in 2019, there’s been no litigation filed against I.V.F.

“If Missouri was going to do something, they would’ve needed to already address it,” she said.

In the days following the Alabama decision, lawmakers in that state passed a law shielding IVF clinics and providers from civil and criminal liability, raising concerns that while such a law allowed clinics to reopen immediately, it also prevented families from having the ability to sue if something went wrong.

Asked in March if she’d support a law to more clearly protect I.V.F., Coleman said she would be hesitant.

“Because it’s broadly legal right now,” Coleman said. “I wouldn’t want to enact something that would actually make it harder for a family who would receive malpractice in their medical practice to be able to be made whole.”

Lingering effects of Alabama decision

As president of the Midwest Reproductive Symposium International, Dr. Amber Cooper looks forward to discussing emerging technologies and advancing access to care at the annual gathering.

But this year, the Alabama decision lingered like a shadow over the group.

 Dr. Amber Cooper, medical director at Kindbody St. Louis, a fertility clinic, said she believes that without legislative protecting in vitro fertilization, there remains some risk to the procedure in Missouri (Photo provided by KindBody).“We’ve had to pivot and discuss ‘how do we protect patients, patients’ decisions? How do we protect embryos in storage? How do we protect clinics, particularly in states that are more threatened by some of these political decisions?’” said Cooper, a board certified reproductive endocrinologist and medical director for fertility clinic Kindbody St. Louis, who led this year’s conference, happening this week in Chicago.

She said a lot of misunderstanding around IVF has emerged in mainstream conversations since this spring, including a belief that many patients have numerous excess embryos in storage.

Cooper said it’s lucky if even 20% of the embryos created result in a live birth.

Creating only one embryo to use at a time is unrealistic, she said, and overlooks considerations including rapidly declining egg pools, patients undergoing cancer treatment and patients with genetic diseases.

“If we only create one embryo at a time, the success of IVF becomes profoundly lower,” she said. “And in a country where (health plans) don’t often pay for IVF … the access to care, and the affordability becomes the biggest issue of all.“

Cooper said many of her Missouri patients have asked about storing their embryos across the river in Illinois, where reproductive rights are more expansive. Larger nationwide fertility clinics are also considering where to grow and expand. Right now, Cooper said, red states look less appealing than blue ones.

“I think IVF still could be at risk,” Cooper said. “I don’t think we’re quite there yet in Missouri, compared to some other states. But it’s still a state where we are nervous that it could be.”

Legislation, she said, would be the most effective way to alleviate that concern.

The U.S. Senate might take up legislation to protect IVF access on a federal level as soon as this week. Last week, Senate Republicans blocked a bill from moving forward to vote on reinforcing access to contraception. Missouri Sens. Josh Hawley and Eric Schmitt were among the Republicans who blocked the legislation.

Another possible protection lies in an initiative petition campaignhoping to ask Missouri voters if they want to legalize abortion up to the point of fetal viability. The amendment, if approved for the November ballot, reads, in part: “The government shall not deny or infringe upon a person’s fundamental right to reproductive freedom.”

Waiting and worrying

While IVF has largely faded from the headlines in recent weeks, people struggling to grow their families across Missouri still grapple with concerns sparked by the Alabama news.

Maddie Bobbitt and her husband Jerel have been trying to conceive since December 2019.

One egg retrieval, six frozen embryos and two miscarriages later, they’re waiting to implant their remaining two embryos in August.

About one in five married women between the ages of 15 and 49 experience infertility in America, meaning they are unable to get pregnant within the first year of trying, according to the Centers for Disease Control and Prevention.

In St. Louis, where Bobbitt lives, it’s one in six couples.

“But when you are the one in six, you know, it feels like one in 6 million, it feels like you are the only one,” Bobbitt said.

When news of the Alabama decision came as Bobbitt, 33, was in the thick of IVF, she was filled with rage.

“IVF in and of itself is so unbelievably stressful and heartbreaking, and just very traumatic,” Bobbitt said. “When you add on top of it that we live in a very conservative, red state, that just adds an extra layer of stress and angst and being afraid for my own personal health and wellbeing and safety.”

Jovonna Jones, 35, who is undergoing infertility treatment, considered traveling to Mexico to finish her current round of IVF when she and her husband, Donovan, heard the news. But for now, they’re continuing to see their doctor in St. Louis.

“You really don’t have room for stress,” Jones said. “Because your body needs to be as calm as possible so those follicles can continue to grow.”

So far she and her husband have undergone five IVF cycles. They’ve taken out two loans and hosted numerous fundraisers to afford the $70,000 they’ve paid out of pocket in the hopes of making Jones’ husband a father.

She has four children of her own from a previous relationship.

Missouri is not among the growing number of states that mandate some form of infertility coverage, despite efforts by some lawmakers to require insurance coverage for the process to help alleviate some of the financial burden that comes with growing a family through IVF

Zoll, the St. Louis mother who petitioned her state senator earlier this year to protect the procedure, watches her daughter play with baby dolls and fiercely hopes she won’t also experience the toll of infertility.

“IVF is one of the most pro life things I’ve ever heard,” said Zoll, who runs an infertility-focused nonprofit in St. Louis called Making a Miracle, “How can you try and take that away? The impact would be just detrimental to so many families, because it’s our right to have children and build them.”

The Missouri Independent is a nonpartisan, nonprofit news organization covering state government, politics and policy. It is staffed by veteran Missouri reporters and is dedicated to its mission of relentless investigative journalism that sheds light on how decisions in Jefferson City are made and their impact on individuals across the Show-Me State.
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