After three insemination procedures, one false positive pregnancy test, two in vitro fertilization cycles and — finally — one actually positive test, Damara Hamlin-Vaughn gave birth to her son, Jediah, on March 1.
“He was born early; he needed to learn how to eat,” Hamlin-Vaughn, 39, said Friday afternoon after feeding Jediah, who was healthy and sleeping soundly at home. “He’s a little guy and he gets tired. … Eating is hard work.”
During her most recent cycle, four embryos — microscopic groups of cells formed by a fertilized egg — endured the process. One was found to have a fatal defect. Three were frozen. One ultimately grew in her uterus to become Jediah.
“I am very thankful for everybody that’s helped on this journey and especially [my doctor] and his team,” she said.
Two weeks before Jediah was born, Alabama’s Supreme Court ruled that frozen embryos are considered human beings and those who destroy them could be held liable for wrongful death. Many people seeking to start or expand their families through in vitro fertilization (IVF) in Texas, including Hamilin-Vaughn, were nervous. So were doctors. The issue also has added fuel to a mission to unseat three Texas Supreme Court justices.
“We had an embryo that was destroyed because it had a genetic condition that was not going to be compatible with life,” said Hamlin-Vaughn, who is a genetic counselor. “Is there a world where someone would have forced me to implant that embryo and go through a miscarriage?”
While the two remaining embryos she has frozen are “incredibly precious” to her as she seeks to have more children, she does not consider them human.
“There’s the potential for life, but that’s with everything,” she said. “I’ve got all these eggs that are in my ovaries right now. It’s all potential life.”
She hasn’t looked into the risks or costs associated with moving her embryos out of state but said she’ll be watching Texas courts and lawmakers for “warning signs.”
IVF protection in Texas
Under current Texas law, embryos aren’t considered people until they’ve been implanted in a uterus, said Dr. Matthew G. Retzloff of the Fertility Center of San Antonio who specializes in infertility, surgery and IVF.
“Specific verbiage … excludes specific verbiage that excludes embryos from any discussion of any sort of abortion issue,“ in Texas, said Retzloff, who is Hamlin-Vaughn’s doctor. “I don’t think we were quite as concerned that the same thing would happen here. … It hasn’t had an impact on our care.”
Some patients were “skittish,” he said, but the doctors in his practice have been able to clarify that IVF processes are currently protected.
Dr. Kelly Morales, an obstetrician-gynecologist at Willow OBGYN, said several patients contacted her office after the Alabama ruling to ask how it could impact their treatment.
“As of right now, it’s not affecting us, but I don’t know what the future holds,” Morales recalled telling her patients. “It just takes that one state for things to gain traction. … I am worried it’s going to become a domino effect.”
Dr. Melissa Crawley, whose oncology patients often rely on IVF options due to cancer treatment, said several were no longer considering it.
“Some of them did reference directly that they were worried about what could happen in Texas” in the wake of the Alabama ruling, Crawley said.
Many fertility clinics in Alabama paused operations until the Legislature passed a law this month protecting IVF patients and providers. Amid the fallout in that state, Texas Gov. Greg Abbott signaled his support for IVF but stopped short of calling for a law to protect it.
“We want to make it easier for people to be able to have babies, not … make it harder,” Abbott told CNN. “And the IVF process is a way of giving life to even more babies. And so, what I think the goal is to make sure that we can find a pathway to ensure that parents who otherwise may not have the opportunity to have a child will be able to have access to the IVF process and become parents and give life to babies.”
According to a recent Pew Research Center survey, 42% of people in the U.S. say they “have used fertility treatments or personally know someone who has. This is up from 33% five years ago.”
Hamlin-Vaughn said IVF’s prevalence may protect it from legislative or legal attacks.
“It’s not just for people who are more conservative or people who are more liberal. All kinds of people require IVF,” she said.
John Seabo, president of Texas Right to Life, said the anti-abortion advocacy group is not currently prioritizing IVF-related legislation or looking for cases that could be used to challenge existing laws.
“As an organization, we’re against the destruction of human embryos,” he said. “But we do have other threats against human life that we are focusing on right now in Texas,” including the fight against mail-order abortion drugs and enforcement of the current abortion ban.
Still, Drs. Morales and Crawley aren’t convinced that IVF is safe from legal interference. Neither is Gina Ortiz Jones, former undersecretary of the U.S. Air Force who leads the Find Out PAC, which is aimed at unseating three Republican Texas Supreme Court justices.
Movement to oust justices
“I think there’s no question in people’s minds how the Texas Supreme Court would rule in a similar case” to the one in Alabama, Jones said. Comments from other Republicans like Abbott and former President Donald Trump in support of IVF haven’t reassured her.
“I am less concerned with what they say because their actions have been so clear,” she said.
Texas passed Senate Bill 8, the most restrictive abortion law in the nation also known as the Heartbeat Act, before the U.S. Supreme Court overturned Roe v. Wade in 2022 and triggered an all-out ban with scant exceptions for cases to save the pregnant person’s life or prevent “substantial impairment of a major bodily function.”
Jones said she had a “visceral” reaction to the state Supreme Court’s handling of the Kate Cox case in December. The court ruled she did not qualify for an abortion, despite Cox’s deteriorating health and the fetus’ fatal diagnosis. She ultimately traveled out of state to get an abortion.
“If you’re pissed off by how these women have been treated, we can hold these folks accountable in November for what they have done,” Jones said. “They are also expected to rule on these travel bans. … There’s a lot that this court is going to have before them and we’re going to be able to point to all of that and show [voters] what’s at stake.”
The Find Out PAC has released online ads lobbying against anti-abortion Justices Jane Bland, Jimmy Blacklock and John Devine, who won their primary elections. Only Devine faced a Republican challenger.
Devine has campaigned on his wife’s high-risk pregnancy that endangered her life as she carried her seventh child, who died one hour after it was born, to term, Jones noted.
While other states including California, Kansas, Kentucky, Michigan, Montana, Ohio and Vermont hosted successful ballot measures to protect abortion rights, such a measure in Texas would have to be approved by a Republican-controlled House and Senate before sending it to voters.
“This is our version of a ballot initiative,” Jones said of the movement to oust the justices. “It’s an accountability measure.”
Legal and moral differences
Hamlin-Vaughn tried to imagine how she would feel if one of her embryos was destroyed — by accident or on purpose — as in the Alabama case.
“When something like that happens, I understand being upset [and] wanting some recourse for that.” There should be punishments, she said, but not akin to murder.
Giving embryos “personhood” status is “dangerous,” she said, because it “makes it hard for practitioners to do their job and help families.”
In the Alabama case, three couples sued a hospital and clinic under the state’s Wrongful Death of a Minor Act after another patient destroyed their embryos. It’s unclear what that patient’s motives were. Media reports state they were “wandering” around the facility.
Dr. Retzloff, who said he is familiar with the people who work at the clinic in Alabama, said the incident seems to be the result of “ignorance” on the part of the patient and a breakdown of security.
“All you can do is put redundancies and backup and security measures on security measures,” he said. “Ultimately, there is no 100% foolproof mechanism to protect anything in this world. And frankly, that would include embryos.”
There are legal and moral differences among cases of negligence, a failed IVF process and a woman who chooses not to use her embryos, Texas Right to Life’s Seabo said.
Texas law would allow for a civil suit to be filed against someone or an entity for negligently destroying an embryo, he said “but in both the Health Code and in the Penal Code, it says if you are a good faith doctor … doing reproductive technology — which includes the destruction of embryos — that you will not be held liable for homicide or for assault.”
That’s a “legal compromise,” Seabo said. “That is a balance. We have morals that are not always reflected in law.”
The laws surrounding embryos should be enhanced to prohibit producing an “abundance of embryos that are just going to be destroyed,” he said, but “when we look legislatively, you can’t work on 50 topics, you do have to focus. This has not been a priority from us. If we hear from legislators that this is a pressing issue that they want to debate, we will assist them.”
Still, the issue hits on the “basic principles for why we’re pro-life and how our strong ethical commitments are actually grounded in very basic biology,” he said. “The moral position is that it is unethical to cause the death of another human being, regardless of their age, location, ability [or] diagnosis. The pro-life position is based on the indisputable fact that the embryo … is an individual human being with its unique DNA [and] is immediately acting as an organism, not an organ.”
That, however, is widely disputed and debated.
Classifying an embryo, a collection of nonsentient cells, as a person “is just not based in science,” Dr. Morales said. “It’s based on an idea. It’s based on this one small faction of religious thought. And those of us [who] are in the trenches, boots on the ground, dealing with this day in and day out, we do understand the science. We do understand the implications, and we’re just not being listened to.”
