Alabama Embryo Law Explained is Shit2TalkAbout S3 EP 4

“Alabama is not the only state that has, clauses like this in its constitution.”

— Miki Habryn

Jenn: Hello, hello, beautiful humans. Welcome to Shit You Don't Want to Talk About where we help change the conversations into shit to talk about. We have a returning guest, Miki. Thank you for joining us today. We are excited to hear about what is the shit you want to talk about today? 

Miki: Well, we're revisiting some of the themes that we talked about before because something really exciting happened in Alabama this year where, um, assisted fertility and people doing IVF got some really nasty surprises and a bit of whiplash.

Miki: And, um, the story is not over just yet. And, um, we want to talk about what that means for people and, uh, how to think about it and maybe what to anticipate in the future. 

Jenn: Thank you. And why now? Like, I, I, we're recording this early March, the big news hit in February of 2024. Uh, but why do you think it's so important to talk about right now?

Miki: So this is the intersection of, um, this is the intersection of a lot of different things. This is the intersection of, uh, of politics, of law, of religion, um, and, um, As we're recording, uh, yesterday or the day before, as you say, so let's get in February. Yesterday or the day before, the Alabama legislature passed a law to basically re-enable IVF procedures in the state.

Miki: Um, the story is not over. The same Supreme Court that ruled, um, that passed on the ruling that caused this in the first place are going to have an opinion on the constitutionality of the new law. I'm not optimistic about what they're going to find. And I think there is a narrow window of time, potentially only a narrow window of time, for people to make decisions about their embryos and their health care, particularly people in Alabama.

Miki: And, uh, the rest of us should also be looking to Alabama and to other places that have gone down this path to understand what our future holds or could potentially hold in this country more generally, and to make our own decisions about, um, about our embryos and about our care and about our plans in light of those possibilities.

Jenn: Thank you for that. I, I'm, I know we talked about this in a bit in last week's episode. Um, when this is going to be out, it'll be last week's episode. It's if people if you were to say in a nutshell, like what people are going through in Alabama, like not only what is the experience for parents in Alabama who are doing IVF, but also like, could you give us a brief overview if they didn't catch last week's episode of what IVF is?

Miki: Sure. Um, what IVF is, is, um, a medical technique where, um, you take out some of the variables for having a child. So people who are fortunate, uh, in being able to conceive a child naturally in the classic way, um, are, you know, they're very fortunate and those things can be, you know, there can be plenty of health challenges, but for some people they're lucky and it's really straightforward.

Miki: For some people that doesn't work. Yeah. And we don't really have like a profound understanding of, um, human fertility. But some of the techniques that we have are to, uh, basically extract sperm and eggs from people and to replicate what's supposed to happen naturally in, um, you know, in, in the womb using, you know, the mechanisms of cervix and all of the biology around that for bringing a sperm and egg together.

Miki: And we can do that in vitro instead, which is Latin for in-class effective. Effectively, um, and that just takes out some of the variables. So for some people, they have medical conditions that mean that, um, they cannot deliver viable sperm in through ejaculate. For some people, they have conditions where they cannot deliver viable eggs through fallopian tubes, uh, into the uterus.

Miki: For some people, they have conditions where, um, the two, the two can't meet anatomically. Right, even if, you know, they can be delivered into the right places, other stuff gets in the way. And so, for those conditions, um, IVF means that you can do that outside the body, and then create an embryo, which then grows for a little bit, and then you can transfer it back into the body.

Miki: It's also useful for people who have concerns about, um, Uh, genetic problems. Now these can be known or unknown, uh, sometimes people have the experience of having miscarriage after miscarriage after miscarriage, and they don't know why. And so there are some techniques that we have for, uh, assessing the viability of embryos.

Miki: in vitro. We don't have those techniques for assessing, you know, anything that happens inside the body. Um, but what IVF does is it lets us, again, for people who are sufficiently fortunate, it lets us produce a number of embryos, a larger number of embryos than we produce normally, and to test those and to work out like which ones are the most likely to lead to a successful pregnancy and then transfer those specifically.

Miki: And so that can dramatically shorten the time that it takes for a family to have a child. And in some cases, it can make it possible at all, where otherwise like it might not be possible or it might not happen in time for them. 

Jenn: Thank you for that. And I think that helps understand a bit of where parents may be coming from when, why this comes as such a shock of if somebody is using IBF and the embryos are being stored.

Jenn: And then somebody is saying, like, that's not going to be okay anymore, or they're not allowed to use. What exactly happened in Alabama? Like, if you were to say, I guess, uh, something that I've actually talked to a few other guests about as well is there, there is a lot of law that goes into this of what was the original law that, um, that happened in February and then what happened this week, uh, the second week of March and what could possibly happen because I think that's a place where a lot of people get lost is there's news and then what the actual laws are.

Miki: Yeah. So there's a few different angles we could take on this. Um, one of them is, um, uh, like what happened that resulted, like that brought the, the case in the first place that wound up being decided in February. Um, Which was pretty awful. Um, there is the, um, Sorry, the actual events that led to the case were, like, they were really awful.

Miki: Um, there is the experience of other people in Alabama who were undergoing IVF or who had embryos there and, like, what happened to them as a result. And there's also, like, the legal angle of, um, we can talk about, like, the, the, um, how the law evolved and how we got to the place where we are today in Alabama.

Miki: So, um, Which of those three would you like to do? 

Jenn: Let's start with the events that led to, uh, led to it all. And that way we get a bit more background. And then I think the way you mentioned that we can go down each rabbit hole, that it's actually a great way of, uh, setting going in deeper of each part.

Miki: Sure. There's rabbit holes all the way down here. It's, it's, it's, I don't know, like, this is part of why I find these things so fascinating. Um, so from the top, what happened? There was an, um, an IVF clinic somewhere. Um, actually I don't recall the details of exactly where this was, but the, um, there was a patient at that clinic who went wandering around.

Miki: They got into somewhere they shouldn't have been. And they opened, uh, they basically got access to embryo storage and they took out a container of embryos and. Because they're, um, they are stored cold, very cold, when they took out that container it burned their hands, like it burned their hands like nitrogen cold, and they dropped that container and the container broke or spilled or something happened in a way that the embryos were lost.

Miki: And so the, um, Uh, so obviously the, the, the parents who had created those embryos, um, like one of the, one of the tricky things here is like the distinction between the parents and the owners, which is not a distinction that I think is recognized under, uh, under the Alabama law. But then, anyway, so the people were notified, like the parents were notified, and those parents elected to sue for damages.

Miki: That case was rejected at trial because, um, they sued under what was called a, um, wrongful death of a minor law or a wrongful death of a minor statute. And while historically Alabama has recognized that that applies to pregnancies as well as actual children. It had not previously considered the case of embryos that were like not being carried, you know, as part of a pregnancy.

Miki: And so the trial court rejected that and said that no, that's not, you know, this law doesn't apply, so there's no grounds for, for damages basically. You don't have grounds to bring a lawsuit. Um, and that was appealed to the Alabama Supreme Court who reversed that decision. And their finding was. that, uh, it applies to embryos as well.

Miki: So they coined a bunch of terms in the opinion. The opinion is, um, so it sort of, it depends who you are when you read it, right? So if you are a secular person and you read that opinion, it comes across as totally bonkers because of some of the language that it uses. But, um, their holding was basically that, you know, they regard storage of embryos as being a quote-unquote, cryogenic nursery.

Miki: Like it is not different to, um, Like you have a toddler in a nursery effectively, right? And then that toddler dies for some reason and you as parents absolutely have grounds to sue for like that's bad for wrongful death. And so the, um, the court opinion holds that this is equivalent effectively.

Jenn: That's, that's a lot. And something that out of, uh, and I know as soon as I saw it, I reached out to you and also seeing it on the news. There, I felt like there were inklings of, this got caught up with a lot of

Jenn: opinions and laws around abortion going on right now as well. And can you, So, can explain to us a bit of how those were correlated and because this, this does affect other parents and I do want to go into that, but it's also like, how are these related when it started as wrongful death of minors and pregnancy and then changed to it being allowed as embryos like that seems, To effect such a, a bigger picture.

Miki: Yeah. So the, the main thing that has changed in the last few years was that Roe v. Wade was overturned. So Roe v Wade was a case from the seventies, I forget. Um, that held that, uh, for various reasons. Um, there was a right to abortion. So abortion was a part of, um, healthcare effectively. And like it was, that's just what it was like.

Miki: It was, um. A right that people had to access that as a mechanism in health care. Now, that's not like, um, Uh, that doesn't you know It was it was simultaneously like a very broad ruling and like not not like that broader ruling like it was it was somewhat narrow Um, it was super controversial at the time.

Miki: Um, Even the um, the the liberal justices at the time on the Supreme Court said this is this is really big right like this is this is kind of um, Maybe more daring than than perhaps we should have been. Um, but it held for decades, and then Recently, I think it was last year or the year before a case came down called Dobs that basically overturned Roe v Wade So the existence of Roe v Wade as Supreme Court precedent had certain implications and so, in particular, It meant that Um, uh, because people had the right, you know, basically to, to, um, uh, terminate pregnancies, right?

Miki: There, there was some implications to that, that like, you, like, pregnant, like, uh, fetuses, like, just, they did not have the set of rights that a person has, right? Because, um, nobody has the right to terminate, uh, pregnancies. person. I mean, that's not quite true, but to a first approximation, like, there's not like a general right to terminate random people, right?

Miki: But because of Roe v. Wade, like, there was this, um, there was this understanding that there was that right, and because that right existed, like, you could not say that, therefore, fetuses had, like, full rights, just like a child, right? Because it was invalidated by that Supreme Court precedent. So despite that, a bunch of states Um, had passed laws that were basically kind of protest laws, uh, that were in contravention of that Supreme Court precedent.

Miki: Now those laws could not be applied. Like, they were dead on arrival, effectively, because they contradicted the Supreme Court precedent of Roe v. Wade. But they were called trigger laws. And so they anticipated that if Roe v Wade were ever overturned, then those laws would come into effect immediately.

Miki: And so that's effectively what happened. Um, in Alabama, they actually have a constitutional amendment. Well, they have an amendment to their constitution that says in rough terms, um, you know, embryos are people and fetuses are people. And, uh, the, it leaves a lot of details like this is like a very short, this is a very short section of the constitution, but because it holds that as like a fundamental thing, uh, about Alabama, um, when, uh, Dobbs happened, um, sorry, so there's, there's another sort of, um, supremacy thing here where federal law supersedes state law, where they are in conflict, right?

Miki: Like state law cannot supersede federal law. Right? As a, as a general statement. And so because of, um, the existence of this federal precedent, like all the state laws that contravened that, even the state constitutions that contravened the sense of that law were dead. Like they, they were ineffective. They were still there.

Miki: Right? They were still written in the text, but they didn't take effect. They were not, you know, they were not effective. But then DOBS came down and overturned Rho, and instantly all of those things took effect. Um, and so that opened the door for a lot of things that it would have been pointless to do previously.

Miki: And this is one example of that. Like it would have been pointless to bring this kind of lawsuit previously because of the implication from Roe that no, absolutely like before viability or like before birth or something like at some point, like, um, uh, fetuses don't have rights. Therefore embryos definitely don't have rights, right?

Miki: Like that just followed naturally from Roe's holdings. Um, and now that was overturned. So now the door is open. To basically see what are the consequences of all of these things that were written in as kind of protests effectively into constitutions and laws. 

Jenn: Thank you for that. And I just want to also preface, and this is something that we talk about on almost every episode, but just to make sure, these are all, yes, these are all, our opinions that we talk about and our own understandings.

Jenn: As people are looking into this, do your research. Don't just take whatever episode, video, news that you find out, like, do your own research. This is to get the conversation started. This is so people have, start to have some understanding because these are very, very complex topics. As we talked about in your other episode, there's like, we could literally talk about this forever.

Jenn: And, It's, it's hard to break it down. So I appreciate you mentioning that there are different ways that we can go. How did all of this? 

Miki: There's really good faith arguments on both sides of this. Like there are people that feel very, very strongly about, um, pretty much any position you can stake out here for like profound moral reasons.

Miki: And at the same time, there are people who hold the exact same positions for reasons that are about, you know, culture war or political gamesmanship or. Um, you know, whatever else it is that is that is, you know, Maybe less noble and it's just hard to tell right? It is often hard to tell when you are talking to somebody or when you are reading information.

Miki: Like what is the um, What is the baggage that is coming along with that information, right? But there is I would you know to a first approximation I'd say there's nothing like an unbiased viewpoint on these subjects Right? Like everybody is bringing a perspective, like personal experience, baggage, like some kind of tribal alliance, all kinds of stuff is coming into this and it makes it really hard.

Miki: So here we are, we are bringing our baggage and we're going to like open it up and explore it. But, um, yeah. 

Jenn: I appreciate that. Uh, now that we're, we, we did talk about more about the background behind all of this, how has this affected other parents in the state of Alabama? And also as a follow-up question, this isn't just affecting parents in the state of Alabama.

Jenn: It can affect parents, uh, nationwide. But let's start with Alabama itself. 

Miki: Yeah. So if you were a family in Alabama that was doing IVF, um, when this decision came down, then many of the IVF, um, clinics in Alabama just stopped everything that they were doing. So they canceled procedures that were scheduled.

Miki: They stopped taking new patients. They just ended all of this. Um, so the IVF, the process of IVF is like really hard on the body. Um, there's, um, uh, in order to do an embryo transfer, you are, and it is common for people to like do multiple transfers, so they're on like a month by month cycle where they're doing like lots of injections to like drive their hormones like hard into the, in the right direction.

Miki: It, it's, it's tough on the body, it's, it's tough on your, on your mind, it's tough on your relationships, it's tough on everything. Um, and, uh, Like it's just it's super stressful and it's hard and so when this decision came down Then a bunch of people got phone calls saying hey your procedure that was scheduled tomorrow for an embryo transfer We're not doing that right or for or for egg collection We're not doing that right or for whatever it is.

Miki: Like we're not we're not doing the thing, right? We don't dare make embryos and we don't dare touch embryos right now because like the consequences of this of this judicial ruling are too scary so that was um Obviously really upsetting for everybody that was in the process of that. Anybody that had been thinking about it, anybody that was thinking, you know, well, maybe let's just keep trying for a little while naturally.

Miki: And then we'll do IVF next year when we get to it. It's like, Oh my God, will it ever be possible for us to do this? And another way it just got scary is that associated services also immediately, um, stopped doing what they were doing. So there are companies that specialize in transporting embryos. Like basically they specialize in transporting frozen, like things that are frozen liquid nitrogen.

Miki: Um, and they stopped doing what they do as well, because like they were also scared of, well, something could happen, we could be sued for like vast damages, like we're not going to do that. Um, and, uh, and so if you already had embryos and you were due to do a transfer or you were waiting to do that, not only can you now not do the thing you're expecting to do, but also you can't even transfer your embryos out to jurisdiction where you could do it in.

Miki: So basically you have embryos, you can't do anything with them. Maybe you're not able to make any more embryos. Like maybe you're already, you are past that age or maybe, um, uh, well, anyway, whatever the situation is, right? So, um, I, I just, like, I can only imagine like how, how upsetting and stressful that was to all the families that were impacted.

Jenn: Something that you mentioned earlier that I, I want to briefly touch on because I think it's, it's interesting as we ask, uh, what about the parents of the embryos? And there was a distinction made earlier of parents versus owners. And I know that we, in our last episode went into more about the donation of it and, uh, the conception of it and those types of things.

Jenn: But how would you define parents versus owners and the effect there? 

Miki: I would, I would say it doesn't matter how I define it. The question is how does Alabama law define it? Um, the, uh, wow, that's, that's complicated, honestly. So I think that's kind of, kind of why I want to actually answer the different question because it is, like, there's a lot to unpack there.

Miki: Um, the, um, The statute says that, um, only parents have standing to bring a wrongful death suit. Basically, there's a wrongful death of a minor act, or a wrongful death act, the wrongful death of a minor statute. And only parents, quote-unquote, have the standing to do that. So the question becomes, what happens in the case of embryo donation, right?

Miki: So in, um, when we do embryo donation in, um, California, for example, it is a it is a contract that I mean is specific to donation But it is not the same thing as adoption, right? So adoption is the formal process by which the the role of parent is changed, right? So, uh in order to be the parent of a child Um legally like the the process by which you do that is called adoption So a lot of people will sort of confuse the terms embryo donation with embryo adoption um because uh The people that use the term embryo adoption typically are coming from that position of like embryos are equivalent to children And so therefore what we're doing is we're changing the parentage of the embryo and therefore it's an adoption process, right?

Miki: um And the people who are using the term embryo donation, I think, typically are separating that as a, well, this is not a child yet, it's an embryo, and under the, the, the laws, typically, for example, in California, um, an embryo is still property, it is not a person, and so, You can, like, you, you, I mean, we talk about, you know, we were talking about this earlier, like, we, we talk about adopting pets and so on, right?

Miki: Like, because that's a reflection of, like, the, the connection that we feel to them, but it's not a legal process of adoption because, like, there's not a legal concept of, like, parent when it comes to pets, right? There's a responsible owner and there's various things like that. We don't have the same thing.

Miki: Um, and so, um, I don't know what Alabama requires for embryo donation. And it and so I actually don't know if these things are are concordant, right? So if if embryos can be transferred as property in Alabama, or even if they have been transferred as property And to be clear what it means to be transferred as property is that there's a spreadsheet at the IVF clinic Which basically says right?

Miki: Um, uh, you know in in jar A straw B is owned by person C and Right? And it's just a long list of that. And then, to change ownership of that, like, is updating that spreadsheet. That's all it is. And, obviously, there's a bunch of paperwork that's required, and the clinics will have their own standards, and there are legal, probably, there are legal requirements around exactly what you need and how to do that, and they will have their lawyers advised, you have to sign this kind of contract, the person has to do therapy, or whatever it is, right?

Miki: When all is said and done, it's just an entry in the spreadsheet. Right? Whereas, um, to change the parentage of a, um, of a child, there are government records that are updated. There's some kind of like, you know, the social services or, you know, social security or health and human services, something, there's some state-level births, deaths, marriages, registries, something like that, right?

Miki: Which is updated. So there may be embryos where the owner of record is not the same legally as the parent. In the eyes of the Alabama court, right? Because the parenting will be assumed that it was the people who genetically contributed to it What does that mean if one of them was a donor? I don't know.

Miki: Um, Like a sperm donor egg donor, uh, but like the owner of record may be different And so if those embryos are destroyed, right for whatever reason by accident, something like that the parents may not even be notified because like they're not they're not on the record, right? And the owners might be notified you And if the owners want to bring that suit, well, then they run into, well, are they the parents under Alabama law?

Miki: Because Alabama very specifically says it is the parents that are able to bring a wrongful death of a minor lawsuit. 

Jenn: Thank you for that explanation. And this does go, touch back on something we talked about a little bit earlier, but for, for more clarification of what happened to parents that had embryos currently there like they already had their embryos frozen and if they wanted to get access to them or proceed or anything like that, what happened to those parents that were like in the process of doing all of this?

Miki: So the window is pretty short, right? It was only, this happened in February, and yesterday the law changed to make IVF possible again. So in that window, what I think happened is that for the parents, for those, for those parents, for those families who are working with clinics that were, that took like the conservative legal interpretation here of like, we don't want to take this risk, like they were just in limbo.

Miki: Right? Like there's nothing they could do. They couldn't transfer their embryos out because, you know, again, like the, the, um, the carriers, actually, I don't know if all the carriers shut down services, but at least some carriers shut down services and the clinic would not actually do the work, right? So again, I don't know if every clinic had exactly the same restrictions on their practices.

Miki: Um, there's a difference between creating embryos and transferring embryos. And one of those is maybe at higher risk than the other. I don't know, like, again, it sort of depends on what their legal guidance was. Okay. But there were just clinics that just shut processes down cold. And so, um, the, for sure, everybody was thrown into a state of fear about what was actually going to be possible.

Miki: How are they going to be impacted with this? And for, you know, some people, maybe all people, I don't know, they would have just been told there's nothing that we can do right now. We're just gonna have to wait and see how things play out and how things change. 

Jenn: What would you suggest, like, we talked about beforehand, and I think this is a great call out, of there may be only a short window of when what people can do with their embryos that already exist.

Jenn: And if somebody is like, I don't want this to happen again, how does somebody even look into, transferring their embryos out or trying to find somewhere else to take care of this? Um, I don't want to say the situation. I feel like that's not enough of a word to, to talk about this, but, um, how would somebody take care of trying to get their embryo somewhere else so they can continue?

Miki: Transferring embryos is, um, It's a relatively straightforward process. There is a whole sort of chain of custody thing. Um, but there are, there's a distinction between, um, IVF clinics, which are the ones that do the work of actually, um, harvesting eggs, collecting sperm, doing the fertilization, doing the like growing on the petri dish and, um, doing like the genetic testing, like all of that complicated medical work.

Miki: Um, They will also store the results for you. So they will store, they have their own facilities to store things cryogenically. Their goal is not storage. Like, their goal is to use these things to help you have a family. Separate to that, there are cryobanks. And cryobank's role is storage. That's all they do.

Miki: So if you are a family in Alabama that has embryos, then you have a window of opportunity right now to transfer those embryos out to a cryobank outside Alabama. And you should take advantage of that opportunity because if the window closes, then you may no longer be in control of what happens to those embryos.

Jenn: This, this seems, uh, this question feels a bit, um, naive yet. I, I do want to ask it as well as it, I can only imagine if I had embryos stored somewhere, why can't I just store them with me? Like what's keeping me from just going cool? Uh, whatever the, the states and laws are doing, I'm just going to store my embryos myself.

Jenn: What's stopping someone from doing that?

Miki: I don't know if anyone's actually tried that. Like, it's a really good question. Um, the, so it's sort of complicated, but actually not that complicated, right? So once an embryo is vitrified, like once it's frozen, then it just sits in a jar effectively. Like it's a pretty specialized jar called a liquid nitrogen viewer, but the maintenance for that is just topping it up with liquid nitrogen.

Miki: Could you do that in your garage? Sure. If you could get deliveries of liquid nitrogen every so often and you had like a sufficiently insulated container in your garage, like, there's no reason that you couldn't do that. Um, the question is, So firstly, can you do that, right? Like, is it okay for, um, uh, for you to store human tissue, like under your local zoning and under your local laws, um, in your garage?

Miki: Um, is it okay for you to have liquid nitrogen? Uh, and lastly, could you actually convince a clinic or a shipping agency to deliver it to you? Um, so my experience of this was pretty nasty. I was a customer of a, um, Of a, I mean, I guess a cryobank slash fertility, um, outfit that I used for, um, sperm storage, and they, there was just some legal, um, some legal transfers, like the branch I was working with wrapped up and it transferred down to like a Florida based branch and they refused to ship.

Miki: The, the sperm samples that I owned, that were mine, because of reasons. Like, they didn't like, they actually lost the paperwork that was done, and so they insisted that the paperwork had never happened, and as a result, um, because they knew that I wanted to donate to friends, that I wanted to be a donor, they said, no, we're not gonna allow that, because, like, you don't have the right paperwork to be a donor.

Miki: So we just refused to ship these things. Uh, except to another cryobank. We will not permit them to be shipped to a, um, a fertility clinic. And, would that happen if I, I don't know how common that is, like that seemed wildly unethical to me, and I filed a bunch of complaints, and we had legal threats, and all kinds of stuff happened?

Miki: But, um, Maybe that's just common practice. Like, I think there is, as part of having a license to store human tissue, I think there is a certain duty of care in the regulations in making sure that when you send it on, that it is being sent on to a reputable place using a reputable carrier. And so there is no way for you, for you to do, um, uh, for you to create an embryo, um, uh, other than inside your body.

Miki: Right, like that is something that is extremely medical, it requires equipment, it requires doctors, it requires anesthesia, it requires all kinds of stuff, right, and so you can only do that within the confines of a very regulated medical system. Does that very regulated medical system ever allow you to take physical possession of your embryos?

Miki: I don't know. I don't know if anyone's tried. Like my experience of this actually led me to explore setting up my own cryobank. And it's actually not super hard. Like I was kind of tempted to do it. Um, but I mean it is It's not it's not a small commitment, right? Like I think it's not it's not complex, but it's certainly not small Um, but I think it's yeah I don't know.

Miki: So I think my extremely long-winded answer boils down to, like, it might be technically possible. I don't think you could do it. 

Jenn: Uh, and that's fair. And I will say, so as, as I like to use my bestie chat GPT, that is not all the answers. It could be wrong. Yeah. A lot of the times I, I find it as an easy way to get a gist of something.

Jenn: Um, And I just, two things I asked it while, uh, you were explaining your, your, your thoughts on this, are there a lot of laws around buying, are there laws around buying liquid nitrogen? And yes, there is licensing, safety training, storage and handling guidelines, transportation, uh, restrictions and usage restrictions.

Jenn: And then, uh, I asked, uh, are there laws around keeping IVF embryos at home instead of at a clinic? Yes. Safety concerns, legal and ethical considerations, quality control, and medical oversight. So I think technically, I like, I liked your answer. Okay, first off, I liked your answer as in technically it may be possible, not very feasible.

Miki: Mm-hmm. 

Jenn: So, thank you for going, um, through that with me. I, the next question I had was, how, 

Jenn: how do We as a society or we see these things happening, um, something you mentioned, uh, is Poland went through this previously, and there's a lot of things that I, and this is a much bigger, uh, question as well yet on, on this exact instance, these, these Things can make a lot of us feel very hopeless and that we're, we're very stuck.

Jenn: There's nothing we can do about it yet. There are ways that like you, you mentioned about how this happened in Alabama and it came down to somebody rummaging around and, you know, in a clinic, and they. dumb stuff out, which in my mind, I'm like, cool, there could be laws around made around, you know, safety precautions and those types of things to help prevent these.

Jenn: Yet I would have no idea where to start. Or how to gather news on this, or how to help prevent these from happening again. Can you go through a bit of what happened in Poland and how you may suggest for others to work on being more transparent? a part of the change. 

Miki: Yeah, so the jurisdiction that you're in really matters.

Miki: Um, what happened in Poland, I think about 10 years ago, was that a, um, uh, effectively a Christian nationalist government took power. Um, their, um, their name in Polish is Prawo i Sprawiedliwość. The, the, um, translation is like law and justice, law and righteousness, law and basically something like that. And they, um, I mean, they basically set about doing the kinds of things that, like, we hear from Christian nationalists here as well.

Miki: So in the, um, on the IVF side, one of the things that they did, um, fairly promptly was that they cut state funding for, um, all IVF procedures because, IVF often involves destroying embryos and they said well, that's not okay because embryos are children and you can't just arbitrarily destroy them Um, and so their quick fix for this was like we're going to cut funding poland has Like as do most developed places in the world Has, um, universal health care.

Miki: Um, but I want to be clear about this that it's not Like the kind of utopian thing that we necessarily think of my family is polish and they regard it as being 100 percent normal That you show up to your universal health care appointment with an envelope of cash for your doctor to make sure that That they look after you well, right?

Miki: So let's be clear about that. Like it is not it is not Anyway, it is what it is, um, but when they, um, cut the funding for that, like, the consequence is that, like, IVF is, like, just really expensive, and, uh, a lot of people were then no longer able to afford IVF as a, as a path to family building. Um, we did the same thing, um, Here incidentally like even during the brobie wade which held that abortion was allowed the way that Uh, the anti abortion people fought that was by managing Um, basically controlling what funding could be allowed for that So planned parenthood has been like a classic example of this like they provide a lot of different care services for people that includes abortion and they got um, a lot of uh, Basically funding that they've had to fight really hard for but one of the things that the trump administration did Was that they attached a rider to what was called title 10 funding where title 10 funding was specifically for um, basically, uh preventative health care and like reproductive health care for low income people and uh, Planned Parenthood was like the I think the single largest provider in this country Of that kind of care based from that kind of funding And what the the change that the trump administration put in place was to say that this funding could only go to clinics that um would refer Check my negatives in the right order here It could only go to clinics that would not refer patients to doctors who practiced abortion so if you wanted to have the option of referring to a doctor who You provided abortion, even if, right, that doctor, that's not what you were referring them for, right, then, um, you were no longer eligible for that funding.

Miki: And so Planned Parenthood then basically decided not to, uh, accept that funding anymore. And, you know, like Planned Parenthood is like the only supplier of like reproductive healthcare for large chunks of the country, right? Like it's, it's just like, it's super damaging. So even when like the right is recognized, like cutting funding, it's like a really powerful lever to change behavior.

Miki: We attach writers like this to foreign aid all the time, right? Like there's definitely, I don't know, there's a big political contingent that prefers to see women suffer and die than to like allow them to have the option of getting abortions. So in Poland, like that was one of the early steps that they took, but then they passed a more comprehensive law around, um, what you can do with embryos.

Miki: And, um, That law basically said that you can no longer destroy embryos. Like, you just can't do it. It's not allowed. You cannot go to a clinic and say, I want you to discard the rest of my embryos. I'm done with my family. Um, you can donate them, but you can only donate them to a heterosexual couple. You can't donate them to a gay couple.

Miki: You can't donate them to single women. If you are a single woman who created embryos, you can't use them anymore. Unless you go and get fake heterosexual married, or, you know, find yourself a real heterosexual marriage, then you can use your embryos again. But otherwise, you can't use them. Can't use them, can't destroy them.

Miki: So what happens? Well, you can still donate them to heterosexual couples, uh, and if you choose not to, after 20 years, the government takes possession of your embryos, and they will donate them for you. 

Jenn: A lot of thoughts are going through my head right now. Um, It is so hard to even try to find out this information, uh, and understand each aspect of it.

Jenn: A big part that, that goes through my mind of,

Jenn: It's hard to follow

Jenn: in a way where the money goes. So understand where the funding was, was lost and also seeing why doctors are no longer able to refer to other people and the impact there as well. It's, it's also hard and, and a big reason to have the show is it's, it's hard to doesn't always feel hopeful. It feels like there's many times it feels like it's a lost cause and it's like, well, there's nothing we can do now yet.

Jenn: I, I appreciate you, you calling out 

Jenn: a bit of what the past process was and how we got here, but what would you suggest if people feeling like this, like how, how do they start to? What, what now?

Miki: I think the main thing for people to be thinking about really hard right now is if they have embryos in storage, do they want to be the ones who are in control of what happens to those embryos? And if they are, then they need to make sure that those embryos are moved to a jurisdiction that is going to protect that right.

Jenn: That is a lot. Um, We, we definitely have gone through quite a lot today. Is there anything that we didn't cover that you wanted to cover today? 

Miki: Oh, we didn't cover the religious background to this. We didn't cover the political side of this. Um, there's so many things we didn't talk about here, Jen, because we only had so much time.

Miki: And this is like,

Miki: know, like I have a personal, deeply emotional interest in this. I also have like a very intellectual fascination with like a lot of the the kind of intersecting systems that are in play here. And like the future is pretty scary. The history is pretty fascinating. I'm personally very grateful to live in a world that's like that.

Miki: in San Francisco, in California, where I am pretty confident that the, um,

Miki: that the government here is going to fight for the things that I believe in and that I agree with. And my heart goes out to the people that don't have that confidence.

Jenn: Thank you. And I would say, if you, we know you're going to be back on the show again at some point. That's just going to be a given. Like there's more we can talk about and, and different ways that we can, um, continue the conversation. Can you give us a brief overview of the implementation, implementation, implementation, implementation, implementation, implementation, about what religion does, uh, on this subject?

Jenn: And then also the political, like, I know it's going to be hard to do brief on those two things because they are very intricate, yet I think knowing how that's affected it, and I feel like we did go a little bit into the political side of it a bit, but I think just a high-level overview of those two would be very helpful.

Miki: Yeah. So on the political side, um, there is a history here that dates back, I think, to the seventies where, um, abortion was deliberately constructed as a wedge issue. Because of the particular arrangement of conservatives and religious conservatives versus political conservatives and coalition building and various things like that.

Miki: So it was a very deliberate construction. And it was partly, I think, in response to Roe v. Wade or partly Roe v. Wade was a response to that. But all of these things happened together. And since then, these coalitions have advanced in lockstep under this regime of You're not actually going to do anything useful, but you can all be angry about it together.

Miki: And so when DOBS was handed down, there was this really big sense of like the dog caught the car and now doesn't know what to do with it. And what we saw politically was a pretty rapid fracturing in the, um, in the people who were, um, Uh, kind of morally or religiously opposed to abortion. Versus the people that actually didn't care that much, but they were coalition partners for them.

Miki: Um, because now we're at a place where, um, the, the impact on the voters, uh, because of voter preferences is very severe. And we saw that with Alabama, where like when this decision was handed down, there was like two days of like real trumpeting about like what a triumph it was for the pro-life movement.

Miki: Right? And all of these things and how, you know, we're rah, rah, rah, we're doing all the things. And then people realized that it meant that IPF was not going to be accessible. And it turns out that even conservative voters make families with IPF. And like, they might, you know, they might have all kinds of complicated feelings about embryos and embryonic personhood, but at heart, they still want to make families, right?

Miki: And because Like this stuff has just been out of play, right? Under the Roe regime, this stuff is just not in play. Like you could not, you could not do anything about it. Nobody really thought about what does this actually mean. Like nobody really dug into like the deep, um, kind of moral, ethical, religious considerations behind this.

Miki: And now, but people still like, legislated and wrote things into constitutions sort of like in the Blythe Conference that it didn't matter like it was sort of just like a it was virtue signaling right because it didn't matter Right and now that this has been overturned Um, all of these things are clicking into effect and now we are in the domain of unintended consequences right, and so the There was two days of trolling about this decision, and then like a mad scramble by the, the folks that were previously, you know, extremely pro-life, the politicians who are extremely pro-life, to say, wait, wait, wait, wait, wait, we are pro-life, but we're also pro-IVF.

Miki: And so then Alabama, the law that Alabama passed, basically says, look, destroying embryos is really, really terrible unless you're doing it in the context of IVF, in which case it's A-OK, you go ahead. Right? Now, Alabama still has that clause in its constitution about embryos which is basically like embryonic personhood, right?

Miki: And that law is subject to review by the same people, by the same Supreme Court, that said the things about cryogenic nurseries in like a hundred pages of like religiously tinged opinion, right? Is that law gonna stand? No, I don't think so. I mean, who knows, right? But I don't think so. Alabama is not the only state that has clauses like this in its constitution.

Miki: Sure as heck not the only state with trigger laws like this. And now we're seeing all of this play out. And like, in some sense, um, the,

Miki: the kind of the, the conservative voices that, I feel most aligned with on on their opinions around this are the ones that say Um, this should never have been done by the courts in the first place, right? This should have been legislated This should have been legislated by the people who are accountable to voters and they should have had the tough arguments They should have found the tough compromises.

Miki: They should have written those laws, but they didn't because the supreme court in Roe v Wade basically just said you don't have to like we're going to take the heat on this Right and therefore you can go and posture all you like right because it doesn't matter and then Dobbs was undoing That really distortive effect and the problem is that our politicians don't legislate as a general rule Because they don't have to because the courts are going to do the job for them or historically Like, for the last few decades, the courts have done the job for them, so they've been able to just, like, puff around and, like, you know, present themselves, rah rah rah, to doing whatever it is, but not actually have to deal with the consequences of making tough laws.

Miki: And so now the Supreme Court has moved towards a model where They're not willing to take the heat anymore, right? Again, like, this is the interpretation, an interpretation, it's a very conservative interpretation, but it's one that I think makes sense, right? It's one that I think, like, holds together as an explanation.

Miki: Like, the Supreme Court is no longer willing to take the heat for the legislature, like, not doing its job. And now, legislation needs to do its job, but oh boy, is there a bunch of baggage to unpack, because in the meantime, all this crap has happened, like all of this stuff has been written into laws, into constitutions, that now they're going to have to undo, or revisit, or modify, and oh, are we in a nasty, nasty place for the next few years, right?

Miki: Because that's going to take a lot of work to unpick that all. Now luckily, since Dobbs, we've also had a bunch of states which have been able to put this, um, to put constitutional provisions on the ballot. That, you know, basically say the right thing about like, um, you know, abortion is healthcare, right?

Miki: And those states, again, like the Constitution is the supreme authority, right? And so if that's in the Constitution, then that can be used to deal with all of those laws, right? But some states have the opposite thing in their Constitution. Some states don't have anything in their Constitution about it.

Miki: And there's always the possibility that at the federal level, There's going to be law changes or legal changes that are going to override those state constitutional provisions. I think that's the real fear here because we're going into an, uh, you know, an election November which is going to be, you know, like, extremely messy, um, and right now it looks pretty favorable for the conservatives.

Miki: that they are going to have, you know, some increased amount of power, like maybe over the presidency, maybe over one or both, um, uh, uh, chambers of legislature. Um, obviously they already have like, uh, control over the, um, judicial branch. And I'm just, I don't know. I don't know, Jen, like this is going to be, this is going to be a few years of like, we don't really know what's going to come next.

Miki: And so this is why it's so important to be thinking about what is the jurisdiction, like what is the legal regime that has control over your embryos? Um, because if you care about that, if you care about what you can do, we could, after November, I mean, after the inauguration in January, like the world could change super fast, super, super, super fast.

Jenn: I know I normally ask about words of wisdom before this, but I feel like. You, you set this up so well of where do people like go to follow you and your content and see these resources because this is something you are so passionate about. You talk about it on a regular basis. How do people reach out to you or follow you?

Miki: I don't talk about this enough, honestly. Um, so firstly, if anybody has specific questions, please reach out to me by email, mickey@eoembryo.com. I am also Dear Eng, director on TikTok. And you know what, I'm gonna start posting about this on TikTok. 

Jenn: What are some words of wisdom that you have for either your past self or others going through this?

Miki: I think I actually depressed myself enough with this whole conversation at this point that I'm struggling to find good words of wisdom and, uh. 

Jenn: What is something that would give you hope? Because there, we did, this is, it is really hard to talk about these conversations and I think that's a great call out of it is, it, it can feel so hopeless.

Jenn: What is, what is something that you see that gives you hope? 

Miki: So I think, um, I think it's that we have more control than we realize. So the process, all of these assisted fertility things, they're so medicalized, they're so regulated, it can feel, um, it can just feel like you're a passenger. Right, like you are subject to the whims of doctors, like what they say, you don't understand really why they give the advice they do, or what, what the next steps are, things like that.

Miki: But you do have control. You are the, you know, you are the one who has control here, and even though you're not a specialist, this is one decision that you can make. Like, find the decisions that you can make, and the decisions that you can make are about the people that you are working with, and the places that you are working in.

Miki: And even if nothing else, like, even if you are living in a state where, um, you fear the worst, um, you are not constrained to only seek medical treatment in that state or to seek care in that state, like, you have the power to do things in, you know, in other jurisdictions, in other places, um, whether you have the money to do that, like, that's another tougher question, um, but you have, you have control.

Miki: You do have control. You can make the right decisions for yourself and your family. And I think now is the time to get better informed so you can make those decisions for the future. 

Jenn: Thank you. And last but not, Oh, I'm just moving my mic around. Um, last but not least, what is something that you're grateful for?

Miki: I am grateful for living in the place that I 

live. 

Jenn: I, I can relate. And also, I moved to the state of Arizona from Colorado earlier, uh, or last year, actually. And I'm grateful there are states that still have rights, even though I may live in one that doesn't. And that gives me a lot of hope of, yes, it can be scary moving to a state where some of my rights are taken away.

Jenn: Yet, having these conversations. It gives me hope of a way to get through them of seeing that there are people talking about this shit. And I'm really grateful for that. That it's not, I feel a lot less alone and I'm grateful for that.