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A Kansas family races to have another child through IVF amid legal and political uncertainty

Chelsea and JaMikell Burns struggled through years of infertility before having their son, Greyson. Now, they’re worried disruptions to IVF care in Alabama jeopardize their efforts to grow their family.
Rose Conlon
Kansas News Service
Chelsea and JaMikell Burns struggled through years of infertility before having their son, Greyson. Now, they’re worried disruptions to IVF care in Alabama jeopardize their efforts to grow their family.

A disruption to in vitro fertilization in Alabama has some Kansans worried they could be next. It comes as experts raise questions about ‘fetal personhood’ in state law.

DERBY, Kansas — Chelsea and JaMikell Burns wanted to be parents. But Chelsea’s first four pregnancies were ectopic, and had to be removed for her safety. The couple tried six rounds of intrauterine insemination, but Chelsea didn’t get pregnant. Testing and an exploratory surgery didn’t yield answers.

“The only thing (the doctors) could see that would work,” Chelsea said, “would be IVF.”

She said the hormonal injections were painful, but not as much as the waiting. And the cost: around $30,000 for the cycle, because their health insurance — like many plans — didn’t cover it.

Finally, after years of agony, their son Greyson was born a little over a year ago.

“He’s absolutely the light of our lives,” Chelsea said while the couple played with him at their home in Derby, just south of Wichita. “Every day is a joy.”

They want him to have a sibling. But in January, when they transferred the only other viable embryo from their IVF cycle — which, they said, cost another $12,000 — it didn’t survive.

“I don’t think there’s a harder thing to have gone through,” JaMikell said, “just trying to have a child.”

Now, the couple is scrambling to raise the estimated $40,000 they’ll need for a second round of IVF. For JaMikell, an HVAC technician, that means a lot of late nights and extra shifts. He’s also picking up odd jobs and started an embroidery business. He recently finished 147 custom Easter baskets for local families.

In their minds, the clock is ticking due to developments earlier this year in Alabama, where a state Supreme Court decision granting legal personhood to frozen embryos temporarily put IVF treatments on hold. Lawmakers there quickly passed new protections for fertility clinics, and the care has, mostly, resumed.

But the Burnses are worried Kansas — or Texas, where they traveled for fertility care due to a lack of local options — could be next.

“It’s scary,” Chelsea said. “What if I get into a cycle and they make it where we can’t do IVF anymore? That’s the only way I can get pregnant.”

Beyond state borders

While the direct impact of the Alabama ruling was limited to that state, advocates and legal experts said the fallout extends far beyond its borders.

“We’re still very concerned about threats to IVF in other states,” said Betsy Campbell, chief engagement officer with the patient advocacy group Resolve.

“Kansas is among several states that we are trying to keep a close eye on, based on their past history of introducing bills that reference embryos or include conflicting information that then could be interpreted differently by different judges.”

Currently, Kansas law says artificial insemination and discarding fertilized embryos prior to implantation are legal. The state constitution protects the right to abortion, according to a 2019 ruling by the Kansas Supreme Court.

But Kansas also has a legal declaration that human life begins at fertilization, similar to in Alabama and a handful of other states.

The legal concept is known as “fetal personhood” and is the culmination of years of lobbying by anti-abortion groups, which have been quietly working to pass state laws giving fetuses the same rights as all people.

Reproductive rights advocates said those laws are taking on newfound importance now that the U.S. Supreme Court has overturned Roe v. Wade.

“Language that seems simple — like ‘life begins at conception’ — can have a legal effect that leads to recognition of fetal personhood,” said Emily Wales, president and CEO of Planned Parenthood Great Plains. “And that is the first step in getting to a conclusion like we saw in Alabama.”

So far, the Kansas declaration hasn’t threatened fertility care. But UC Davis law professor Mary Ziegler said it might only be a court ruling away.

“Its exact impact is unclear,” she said, “but, because Kansas has this law on the books, that’s sitting there like a loaded gun for a later state court to, maybe, look at.”

Kansas bill stokes ‘fetal personhood’ fears

Last week, Kansas lawmakers sent a bill to the governor that critics said could further cement the concept of fetal personhood in the state. Gov. Laura Kelly, a Democrat, is expected to veto it, and it’s unclear whether Republicans will be able to override her.

The proposal would allow pregnant women to collect child support beginning at conception. It’s a key legislative priority of the anti-abortion lobbying group Kansans for Life, which said that many women get abortions due to financial insecurity. Maybe some wouldn’t, the group argued in legislative testimony, if they had more help paying for pregnancy-related expenses.

But civil and reproductive rights groups argue the effort is a veiled attack on women’s reproductive rights — and could be a vehicle for courts to further limit access to abortion, as well as, perhaps, fertility care.

“It sets a dangerous precedent, subtly weaving the notion of fetal personhood into the fabric of law,” Rashane Hamby, director of policy and research for the ACLU of Kansas, said in written testimony.

In an email to the Kansas News Service, KFL lobbyist Jeanne Gawdun called critics’ linking the bill to the personhood debate “simply dishonest and merely political theater.” She said lawmakers likely cannot ban IVF in Kansas due to the state Supreme Court’s 2019 decision protecting abortion rights under the state constitution.

And during legislative headings, Brittany Jones, a lobbyist with Kansas Family Voice, said the proposal doesn’t give new legal rights to unborn children — because Kansas law already recognizes their rights in other places.

That includes ‘Alexa’s law,’ which allows prosecutors to charge someone with murder, vehicular homicide and other crimes for killing an unborn child “in utero, at any stage of gestation from fertilization to birth.”

“We’re not creating a new definition of unborn child,” Jones said. “We’re not adding them into the code where they haven’t been before.”

But Ziegler said the child support bill is part of a larger effort within the anti-abortion movement to compel states to recognize fetal personhood through incremental steps — including the Kansas Alexa’s law and others like in Georgia, where parents can claim a fetus as a dependent on their taxes beginning at six weeks gestation.

“Is that likely to result in sweeping personhood recognition in the short term? No,” she said. “But it’s part of this longer game, both in Kansas and at the national level.”

In one example, Alexa’s law currently exempts abortion and “acts committed by the mother of the unborn child” from prosecution for murder and other charges. But there have been legislative proposals, including this year, to ban abortion in Kansas by removing the law’s abortion exemption.

Some anti-abortion groups oppose IVF

Leading national anti-abortion groups oppose the practice of discarding embryos, common during IVF, and many praised the Alabama court decision as a win for the movement.

But it’s less clear where Kansas anti-abortion groups stand.

When asked whether Kansans for Life has an official stance on the issue of IVF or the practice of destroying embryos, Gawdun said in an email the group is “unaware of any time where KFL has taken a position on a legislative proposal dealing with IVF.”

The group’s national partner, the National Right to Life Committee, opposes the practice of discarding embryos.

Jones with Kansas Family Voice said the organization has not taken a position on the practice of destroying embryos.

“We can protect families as they consider IVF & the value of every child in the womb at the same time,” she said in an email. “The abortion industry wants to create a false choice in order to push towards an even more unregulated industry.”

The Kansas Catholic Conference does oppose IVF, like the Catholic Church itself, although its policy specialist Lucrecia Nold said the organization has no plans to introduce legislation regarding IVF in Kansas.

“The Catholic Church recognizes the real pain of women and couples experiencing infertility and other reproductive issues,” Nold said in an email. “Catholics support the effective alternatives that are morally and medically compatible to Church teaching, unlike IVF.”

She pointed to the Creighton Model Fertility System and NaPro Technology as alternatives that are morally compatible with Church teachings.

Kansas lawmakers decline to protect IVF

Democrats in the Kansas Senate recently tried to force a debate on a bill that would strengthen legal protections for IVF.

“Women across this country are concerned and scared, and they don’t know what is the future for their reproductive rights,” Senate Minority Leader Dinah Sykes, a Lenexa Democrat, said about her motion to pull the bill out of committee.

But the motion failed after it garnered only one Republican vote.

It’s one of many examples of mixed messaging among Republicans, many of whom denounced the Alabama ruling restricting IVF — but who have also supported policies that could enable similar rulings in other states and federally.

“We’ve seen Republican lawmakers say they are supportive of IVF,” Campbell said, “yet they’re failing to support legislation that protects IVF.”

U.S. Senator Roger Marshall co-sponsored a 2021 bill that could have restricted access to IVF across the country by extending constitutional protections to embryos “from the moment of fertilization” under the 14th amendment. Still, the Kansas lawmaker affirmed his support for IVF in an interview with NPR last month.

Some who’ve been monitoring the response to the Alabama situation said public support for IVF will make it difficult for politicians to limit access in the near future. A recent CBS News-YouGov poll found 86% of Americans think IVF should be legal.

“There certainly are extreme elements in the anti-choice community who would like to restrict — or make illegal — IVF,” said Sean Tipton, chief advocacy and policy officer for the American Society for Reproductive Medicine.

“It's also clear that the overwhelming majority of the American public is absolutely not there,” he added, “and politicians will cater to the most extreme elements of their constituency at the risk of their jobs.”

Fertility providers weigh uncertainty

The legal uncertainty around IVF could make it harder — and even more expensive — for patients struggling with infertility to get treatment.

Tipton said many fertility care providers suspected the U.S. Supreme Court’s 2022 Dobbs decision that allowed states to ban abortion could eventually imperil access to IVF. That was born out, he said, with the Alabama ruling.

“Now, providers have seen just how fast a court decision can take away their rights to treat their patients and provide them with the best available care,” he said.

After the Dobbs decision, fewer new doctors applied for residencies in states with abortion bans, according to data from the Association of American Medical Colleges. The decline was most pronounced for obstetrics and gynecology programs, where applicant volume dropped 5.2% in states with bans. Some labor and delivery doctors have decided to leave states like Idaho, where strict abortion bans threaten their ability to care for patients with high-risk pregnancies.

Tipton suspects, in a similar sense, the Alabama ruling could discourage fertility specialists from practicing in Republican-controlled states like Kansas, forcing some patients to travel farther for fertility care.

“(Fertility specialists) are going to be very concerned about choosing to go to a state where their ability to provide care for their patients might be impacted,” he said, “and so people are right to be concerned.”

Rose Conlon reports on health for KMUW and the Kansas News Service.

The Kansas News Service is a collaboration of KCUR, KMUW, Kansas Public Radio and High Plains Public Radio focused on health, the social determinants of health and their connection to public policy.

Kansas News Service stories and photos may be republished by news media at no cost with proper attribution and a link to ksnewsservice.org.

Rose Conlon is a reporter based at KMUW in Wichita, but serves as part of the Kansas News Service, a partnership of public radio stations across Kansas. She covers health, the social determinants of health and their connection to public policy.
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