Roe’s Reversal Could Threaten Already Fragile LGBTQ Family Planning Landscape

Before the landmark decision Roe v. Wade on abortion rights being overturned, the landscape of family building for LGBTQ couples was already littered with legal and financial hurdles. But now, with the uncertainty following the Roe reversal in June — including how it may affect the legality of some reproductive procedures — health and legal experts are advising expectant LGBTQ parents to consult with knowledgeable lawyers. the specific laws of their states before beginning their family planning journeys.

Primary care physician Eric Kutscher and her husband, medical student Lala Tanmoy Das of New York City, are starting a family, something they’ve been planning to do for years.

“We talked about literally having kids on our second date,” Das said.

The couple previously underwent in vitro fertilization, or IVF, which involved using sperm from one of the men to fertilize a donated egg. The next step in their journey is to find a surrogate mother to carry the embryo to term. However, the annulment of Roe v. Wade made them think.

Primary care physician Eric Kutscher with his husband, medical student Lala Tanmoy Das, of New York.Courtesy of Henriette Kutscher

Many potential surrogate mothers live in states that restricted access to abortion after the High Court ruling, Das and Kutscher noted, and in the event of a complication during pregnancy, they do not want the options of their surrogate are limited.

“Eric and I are extremely pro-choice people,” Das said. “Maternal health comes first, no matter what.”

Kristin Marsoli, Director of Marketing for Surrogacy circle of Boston, said his agency adjusted its screening process and questionnaires last year after Texas changed its laws to ban abortion after a fetal heartbeat was detected. She said the agency wanted to “ensure surrogates in Texas were properly informed of what a layoff would mean if it happened during their travels.”

Marsoli said the agency — where nearly half (44% to 46%) of intended parents identify as LGBTQ — is ready to make further adjustments as conservative states seek to restrict abortion and reproductive care after Roe’s reversal. Since the June 24 ruling, 14 states have already banned or restricted abortion, and seven more are considering similar restrictions.

“Our legal team closely monitors trigger laws and other changes in each state and provides regular updates to our teams so we can continue to adjust our process as needed,” she said.

At this time, the agency is not advising couples like Das and Kutscher to geographically restrict their search for surrogates as the wait for surrogates can easily take up to a year and the legal landscape is still changing. .

“There are still so many things that are unknown,” Marsoli said.

Pictured: Pictured: Eric Kutscher and Lala Tanmoy Das.
“Eric and I are extremely pro-choice people,” said Lala Tanmoy Das. “Maternal health comes first, no matter what.”Courtesy of Eric Kutscher

Just days after the Supreme Court voted to overturn Roe in its Dobbs v. Jackson Women’s Health Organization, Louisiana lawmakers debated a bill that would have defined life as beginning at fertilization with no exceptions for assisted reproduction treatments like IVF.

While Louisiana’s personality bill was scuttled after debate in the House, the Dobbs decision opened the door for states to pass laws that not only significantly restrict or prohibit abortion, but also have potential effects on assisted reproduction services.

“Roe was supporting a floor. Lawmakers couldn’t restrict reproductive health decisions beyond what Roe was protecting,” said Cathryn Oakley, state legislative director and senior counsel at the human rights campaign, the nation’s largest LGBTQ advocacy group. “States basically have unlimited ability to regulate these matters as they see fit.”

Depending on the exact wording of state abortion bans, such measures could affect reproductive technologies like IVF, as the process can result in the rejection of fertilized human embryos.

“If the law says life begins at fertilization … that means those embryos have rights,” Oakley said, even though fertilization happens outside of the body. “It may be impossible for people in some states to get IVF where they live.”

According to Centers for Disaster Control and Prevention. And while it’s not uncommon for heterosexual couples to use IVF in their family-building journeys, same-sex couples do so disproportionately. A report last year from the UK’s Human Fertilization and Embryology Authority found a fourfold increase in IVF use among same-sex female couples: in 2009, 489 IVF cycles (1% of all cycles) involved female partners, compared to 2,435 IVF cycles (4% of all cycles) in 2019.

While many anti-abortion rights groups support IVF, others oppose access to the procedure. A coalition of anti-abortion rights groups called The Personality Alliance opposes IVF on the grounds that it violates the rights of the embryo.

Missouri, Kansas, Georgia and Alabama already have fetal personality laws, and lawmakers in six other states have introduced such measures, according to the Guttmacher Institute, a reproductive rights research group. The Alabama attorney general’s office said the law would not affect IVF treatment; the consequences of personality laws in other states remain not clear.

Existing challenges

LGBTQ people are disproportionately affected by any law restricting access to assisted reproductive health care, such as IVF.

“The fact is that in the LGBTQ community, a greater percentage of their family-building journeys are going to access assisted reproductive technology,” said Connecticut CEO Dr. Roger Shedlin. WINFertility. “By definition, you might see the community being disproportionately affected.”

And Roe’s reversal comes against the backdrop of an already difficult legal landscape for LGBTQ parents and expectant parents, as states are free to set their own parentage laws.

“Dobbs doesn’t just fall into the void,” said Polly Crozier, senior attorney at GLBTQ Legal Advocates and Defenders, or HAPPY. “We have seen attacks on LGBTQ families before, as there have been instances in recent years of attacks on non-biological parents. We will likely see more challenges to the marital presumption of parentage and challenges to the rights of non-biological parents. »

Many states have not updated parentage laws to account for the fact that at least one parent may not be biologically related to their children, which is the case for many LGBTQ couples. with children.

“Non-biological parents already feel that vulnerability, and then you see all the anti-LGBTQ bills,” Crozier said. (State lawmakers have already introduced more than 340 anti-LGBTQ bills this year, according to the Human Rights Campaign.)

She added that LGBTQ families should take the necessary legal steps — such as second-parent adoption or voluntary recognition — to ensure their families are protected.

“Now really is the time to make sure those basic protections are in place,” Crozier said.

There is even less consistency when it comes to other types of assisted human reproduction laws. For example, Louisiana law already restricts IVF. Dr. Nicole Ulrich, reproductive endocrinologist and fertility medicine specialist at Audubon Fertility in New Orleans, said his clinic does not store long-term embryos. “We store them in Texas right now,” she said.

Ulrich, who has estimated that up to 20% of his patients are LGBTQ, said the clinic is making “contingency plans” on how to make alternate arrangements for patients should case law change at the time. Texas, forcing him to move the embryos again.

Additionally, Louisiana law prohibits the use of a donor egg or donor sperm in a gestational carrier, meaning only couples capable of using their own sperm and eggs can access to pregnancy services.

“Due to regulations in Louisiana, we actually can’t help same-sex male couples conceive,” Ulrich said.

“It’s frustrating to have to exclude an entire population.”

Financial barriers can also make treatments like IVF and services like surrogacy prohibitively expensive for many LGBTQ people, and they are often not covered by health insurance.

According to American Society for Reproductive Medicinepeople can expect to spend an average of $12,400 for an IVF cycle, and surrogacy can Cost between $100,000 and $200,000.

“To add an extra burden or barrier of crossing state lines, staying in a hotel, all of that is really going to add extra burdens for something that’s already not accessible to so many people,” said Oakley.

In recent years, insurance companies have improved coverage for assisted reproduction, Shedlin said. However, due to the medical definition of infertility, even some LGBTQ people who have insurance face barriers to accessing these benefits. In many cases, laws designed for heterosexual couples require them to establish a history of infertility before they are eligible for coverage.

“Just to access your coverage, you face six months to a year because we have a medical referral,” Crozier said of qualifying for insurance coverage. “They basically treat LGBTQ couples differently than non-LGBTQ couples.”

There is a general context of heteronormativity, which can produce discrimination and exclusion for LGBTQ people, said Rebecca Kluchin, professor of history at California State University, Sacramento, focusing on reproductive history. American.

“We assume that pregnancy is the responsibility of heterosexual women,” Kluchin said. “There is an assumption that reproduction is always heterosexual.”

Despite legal uncertainty and financial hurdles, Kutscher and Das move forward with plans to start their family.

“It means the world to us,” Das said. “We certainly have qualms about what the future holds – and what the reality of the kid will be, what the world will be like…but we’re excited and feel ready.”

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