ST. LOUIS — After the Alabama Supreme Court declared a frozen embryo has the same rights as a child in the womb, patients started reaching out to fertility doctors with concerns and questions about the future of their IVF treatments in Missouri.
"I don't think Alabama understood the implications whatsoever," Dr. Sherman Silber said. "This is family building and it's helping people have children, and it's considered mainstream now."
Silber, a well-known author and pioneer in early fertility medicine, said many of his patients called to ask, "Are you going to stop practicing?"
The 82-year-old physician said he has no plans to stop anytime soon. His staff has been providing assurances to patients that their plans of care can continue.
"As far as the state of Missouri is concerned, you're liable for damaging property if you mess up in IVF; but it's simply a civil case and it's property and it's not considered a life," Silber said.
Missouri fertility doctors have been operating under that broad assumption since an appeals court in 2016 reviewed a dispute over frozen embryos where a divorced couple disagreed about whether to continue with IVF after their split. However, the courts have not revisited the issue since Missouri adopted its abortion ban, which is one of the strictest in the nation.
Silber began studying in vitro fertilization treatments from their inception in the 1970s. He claims his medical practice is directly responsible for the births of roughly 50,000 babies over the last several decades.
"Even with Roe v. Wade, there was a tremendous amount of hesitation when [gynecologist Patrick] Steptoe and [scientist Robert] Edwards reported their first case," Silber said. "I mean, we've actually improved IVF and made all the advancements in it since Steptoe and Edwards. Everything came right out of St. Louis. Whether it was ICSI, injecting sperm into the egg, or a better form of egg-freezing like vitrification, or testicle transplant, or ovary transplant, all the modern treatments really came from us."
Silber said if the precedent set in Alabama does start to spread to other states, doctors and medical institutions would certainly take notice.
"As soon as they bring in the possibility you'd be charged criminally for dropping a petri dish, then nobody wants to practice IVF anymore," he said.
U.S. Senator Tammy Duckworth (D-Illinois) accurately predicted the ruling in Alabama years ago and warned other Republican-led legislatures or courts could follow suit.
"After Roe v Wade was overturned — actually, even before then — when Donald Trump promised to only appoint justices who would overturn it, I warned that red states would come for IVF. And now they have," Duckworth said at a Capitol Hill press conference on Tuesday. "But they aren't just going to stop in Alabama. Mark my words, if we don't act now, it will only get worse."
"Now that the first domino has fallen, it may only be a matter of time before more hospitals make the same call, before more courts issue similar rulings, putting more women at risk," Duckworth warned.
U.S. Senator Josh Hawley (R-Missouri) told reporters he was "a little skeptical" about Duckworth's proposal.
"Usually, those bills are about abortion, not IVF," Hawley said Tuesday afternoon. "I'm pro-IVF, and it's protected law in Missouri, my state, and I think it should be everywhere."
The new Missouri law does include "embryo" in its definition of an "unborn child," though it strictly defines an abortion as someone who would "destroy the life of an embryo or fetus in his or her mother's womb."
Hawley, who sits on the Senate Judiciary Committee, previously praised the Supreme Court's Dobbs decision. Conservative justices on the Alabama Supreme Court cited that same Dobbs decision on at least nine instances in their ruling that found a frozen embryo the same as a developing baby in the womb.
Former U.N. ambassador Nikki Haley, who's running for president in the GOP primary, said, "Embryos, to me, are babies," during an interview with NBC News last week. "To me, that’s a life. So, I do see where that’s coming from when they talk about that.”
Former president Donald Trump reacted to the news by calling on the Alabama legislature to protect IVF treatments in state law, drawing criticism from Senate Democrats.
"Donald Trump suddenly supports IVF after crowing and claiming and taking credit for the fall of Roe v Wade," Duckworth said. "You can't do both. It's hypocritical."
U.S. Rep. Ann Wagner (R-Missouri's 2nd District) also issued a statement supporting IVF treatments on social media.
"Many women need IVF to step into one of the most precious roles a woman can fulfill, being a mother," Wagner wrote. "The love they have for the innocent life they brought into this world is unmatched, and IVF helps so many women experience the miracle of motherhood.
"I am a strong supporter of IVF efforts for Missouri women, and I do not support any efforts to ban IVF and close women off from their dream of having a family," she said on Monday.
Duckworth challenged Republicans who expressed support for IVF to take action to protect it.
"In this nightmarish moment, it's nowhere near enough to send out a vaguely worded tweet suggesting that you care about women's rights despite a voting record to the absolute contrary," Duckworth said. "No. Instead, if you truly care about the sanctity of families, if you're genuinely, actually, honestly interested in protecting IVF, then you need to show it by not blocking this bill on the floor..."
Dr. Silber, a man of devout religious faith whose lobby features framed magazine articles titled 'Be fruitful and multiply,' rattled off decades of political history and legal precedent guiding fertility law from Roe vs. Wade until last week's ruling in Alabama.
"The justices there made all their statements based on precedent in the Bible," Silber said. "I mean, normally, in America, there's a separation of church and state, and a law decision is supposed to be made on legal precedent, not on Bible precedent."
He acknowledged many of America's laws were rooted in moral values and faith systems, such as "the Ten Commandments, Judeo-Christian laws," and "Hammurabi's Code," but said a public government has no legitimate role in enforcing religious tenets on a secular society.
"I know the U.S. Supreme Court is extremely conservative," he said. "But, you know, I just don't believe they can uphold a decision that's based on biblical precedent rather than legal precedent."