Roe’s reversal leaves Jewish IVF couples in a legal and emotional crossfire
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Elana Frank September 9, 2022
Yael and Paul,* a Jewish couple who live in Alabama, had been trying to get pregnant for two years, and began infertility treatments over a year ago. They were thrilled this spring that after six frozen embryo transfers, Yael was pregnant with a baby girl.
However, 10 weeks into Yael’s pregnancy, and a mere 11 days after Roe v. Wade was overturned, Yael and Paul discovered during the first ultrasound something was very wrong: The baby girl had a serious anomaly that would prevent her from surviving outside of the womb.
To make matters worse, their genetic counselor informed them that because the diagnosis was still unclear as to whether the genetic anomaly was technically lethal, they may not be permitted to abort in Alabama due to the Dobbs decision, and would have to travel out of state.
Before the Dobbs decision, couples experiencing infertility could choose appropriate reproductive measures for their infertility journeys. If a long-desired pregnancy went wrong, termination was an option. However, the lawmakers who have banned abortion rarely consider the complicated nature of pregnancy and abortion, particularly from the side of those determined to create new life.
Yael and Paul are clients of mine at the Jewish Fertility Foundation. I founded the JFF after my own experiences with infertility treatment were subsidized by the Israeli government, as I was living in Israel at the time.
Thirty-one states do not require insurers to cover any portion of the costs of fertility treatments. When an IVF cycle costs an average of $20,000 in the U.S. (with no guarantee of success), many people sacrifice their future financial stability to pay for it, or they give up hope of conceiving as the costs are simply too high. I wanted to provide American Jewish families with the type of support I had received, so the JFF engages hopeful parents by providing financial assistance, emotional support and education.
Infertility affects 1 in 6 women in the Jewish community. Until the Supreme Court’s decision to overturn Roe v. Wade, most of our “club” did not connect infertility with politics. Today the infertility journey is becoming fraught with new, politically complicated challenges, even trauma.
Infertility treatments invariably add a layer of risk to pregnancy. Medical experts agree that compared to spontaneously conceived pregnancies, those resulting from assisted reproductive technologies have a higher rate of adverse outcomes like preeclampsia and birth defects. Such complications can endanger the mother’s life and hinder the fetus from surviving outside the womb. Because of these physical and mental risks, the possibility of abortion cannot exist separately from infertility — a medical truth that the Dobbs decision completely ignores.
Mental health experts like reproductive psychologist Dr. Lauren Berman recognize how restricted abortion access takes a toll on fertility patients who are already anxious. Berman explains that “a couple undergoing fertility treatment experiences distress and emotional turmoil of equal intensity as someone going through cancer treatment.” Politicians in state houses are not attending to the human suffering that will result from these decisions.
Yael and Paul, upon ultimately receiving the lethal diagnosis of their baby’s abnormality, decided to induce labor at 17 weeks, which, technically, is an abortion. This decision thrust them into the confusing vortex of analyzing laws and the legal status of abortion itself. Due to an exception for lethal fetal abnormalities, the termination would be legal under Alabama’s new anti-abortion law.
However, while the procedure was legal and had the approval of her doctor and a team at her hospital, Yael’s insurance company initially refused to cover it. The company resisted because they too were struggling to interpret the new law.
Alabama’s current anti-abortion law as of June 24 allows abortions if the mother’s health is at risk. The insurance company explained that since Yael’s physical health was not at risk, the termination would cost $20,000. When Yael learned of her baby’s lethal abnormality, her mental health became unstable. Yael’s insurance company does not classify mental health risks as threats to the mother’s health. They refused mental health as a sufficient basis to cover her termination.
Some of the states that are rushing to ban abortion in the wake of Dobbs have explicit language stating that the mental health of the mother does not qualify for an exception to the abortion ban. Rachel Loftspring is a partner in the fertility law practice at Essig & Evans and chair of the JFF who lives in Ohio, whose current law expressly states that a condition related to the woman’s mental health is not an exception to the ban on abortion. “The results can be catastrophic,” Loftspring added.
After significant research, endless phone calls and conversations with compassionate professionals, Yael and Paul ultimately reached someone at their insurance company who clarified that they indeed were eligible for coverage because of state law’s lethal abnormality exception.
Ultimately, Yael was “lucky.” Her pregnancy was the exception to Alabama’s anti-abortion rule. She found the energy to advocate for herself while going through one of the most painful events of her life. As states pass increasingly restrictive anti-abortion laws, I know there will be more infertility stories like Yael’s, though they will not always end with women receiving the care they need.
Imagine what it would have been like for Yael to be forced to continue this pregnancy to term, and multiply that pain by thousands. According to the CDC, 12.5% of US women are using fertility services; that figure jumps to 16.7% among Jewish women, as Jewish women tend to have children later after pursuing college and/or a career (age affects fertility) and are more prone to specific genetic issues.
Yael’s story illustrates how infertility and abortion are not always easily compartmentalized. The desire to have a family and the need for abortion access are not diametrically opposed.
For Jewish couples in particular, whose faith’s ideas about when life begins differs dramatically from the Christian underpinnings of the pro-life movement, struggling with infertility in the wake of the Dobbs decision is now infinitely more painful.
It did not have to be this way.
*Names were changed to protect the couple while they mourn.
To contact the author, email [email protected].
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