Fertility doctor speaks on IVF, HOPE with Fertility Services Act

Dr. Kaylen Silverberg, M.D. is the Medical Director at Texas Fertility Center and the Advisory Board Chair for Americans for IVF, “a coalition of experts and advocates dedicated to advancing the accessibility and understanding of In Vitro Fertilization (IVF) across the United States.” Silverberg spoke with APR on Tuesday to discuss IVF and its recent emergence as a political issue.

We began by discussing the HOPE with Fertility Services Act, a bill introduced to Congress in June by Congresswoman Lori Chavez-DeRemer (OR-05) and Congresswoman Debbie Wasserman Schultz (FL-25). The bill currently has 10 Republican and 3 Democrat co-sponsors. Americans for IVF is heavily involved in the effort to pass the bill through Congress.

Silverberg described the bill and explained why Americans for IVF is working to make it into law.

“We’re trying to make IVF access include everybody in the United States. We’re just trying to expand access so that anybody who is infertile who has been trying for pregnancy can access fertility treatment… and we’ve got several different mechanisms in place to make that happen,” Silverberg said.

16 states currently mandate insurance companies to cover fertility care, IVF included. The HOPE Act is looking to establish these “mandates to cover” across all 50 states. Whereas so-called “mandates to offer” found in states like Texas do not guarantee coverage.

“What [a mandate to offer] means is that any health insurer that offers health insurance in the state of Texas has to offer employers a rider that, if they want to purchase it, would cover their employees for infertility treatment up to, and including, IVF,” Silverberg explained. In that case, treatments like IVF would only be covered if the employer chose to purchase that coverage for their employees. 

“We encourage insurance companies to live up to their financial responsibility, but in the event the insurance companies don’t, then we would like the government to step up… the cost [of insurance companies covering all fertility treatments up to, and including, IVF] would be 56¢ per member, per month,” Silverberg said.

As to why the HOPE Act has more Republican than Democratic support at the moment, Silverberg replied, “Republicans are getting a black eye from their stance on the abortion issue… I think that the Republicans are coming to the realization that, wait a minute, if they’re pro-life, what is more pro-life than fertility treatment? I think that this is a pretty easy bill for them to get behind.” 

Indeed, many Republicans, including former President Donald Trump and Alabama Sen. Katie Britt, have vocalized their support for IVF access in the wake of the Alabama Supreme Court decision. Despite this, Democrats continue to attack the GOP over the issue, claiming that Republicans do want to limit access to IVF.

“Texas Fertility Center takes care of a lot of members of Congress. You know, we’ve given a lot of these members children and grandchildren… IVF and infertility treatment is kind of an intersection of a lot of different types of people,” Silverberg continued. “We have people supporting our bill that you would never in a million years think would support a bill that is 1. requiring a mandate of any kind and 2. dealing with fertility treatment. Yet they’re anxious to support it because they personally have been affected by it.”

APR then asked Silverberg what he would say to critics of IVF who, following the Alabama Supreme Court decision earlier this year, consider unused embryos to be human lives that are effectively being ‘killed’ during IVF treatment. 

“I think that just reflects a lack knowledge and understanding about the situation… the facts are, that if you have a man and a woman who’ve had kids together, with each other, in the past, and the woman is under the age of 35, and they do everything right… their chance for pregnancy in any given month is only 20 percent. And if you realize that a quarter of those pregnancies miscarry, their chance of actually having a baby in any given month is actually 15 percent,” Silverberg responded. 

“In reality… the overwhelming majority of eggs either never get fertilized or never attach to the uterine lining. A quarter of all pregnancies that do attach to the uterine lining miscarry spontaneously. That’s happening in nature already,” he continued.

Silverberg told APR that the average IVF cycle only produces one chromosomally normal embryo — the other eggs would be inviable and would not have survived naturally, whether in the lab or in the body.

“Even half of the chromosomally normal embryos that we put in die a natural death in the uterus,” Silverberg said. 

“Think about doing IVF where you’re restricted to the point where you can only get one egg. For women forty years of age, we’d have to do fifteen IVF cycles to get the same number of eggs that we can hopefully get now in one cycle or two,” Silverberg said, responding to potential restrictions that could come out of rulings like the Alabama Supreme Court’s. “Under ideal circumstances you could do one cycle a month, and that rarely happens.”

If fertility clinics like Silverberg’s were only allowed to use one egg at a time, then it could take them well over a year to produce the same viable embryo that they are currently able to identify in one round of IVF treatment that uses 10 or 15 eggs at a time. 

Silverberg told us that Americans for IVF has experienced an influx in support since the Alabama Supreme Court made its ruling declaring embryos to be unborn human beings. “We’ve seen a huge uptick in support because people are confronted with something that was unimaginable a year ago… there are actually people out there in positions of responsibility and leadership who don’t have a good understanding of the facts and they make statements, or decisions, or rulings that they think are well intended but they’re not thinking of the downstream unintended consequences.”

“I’ll give you a classic example,” Silverberg went on. “There are legislators out there who are opposed to same-sex couples having babies. So they therefore want to block the use of donor sperm or donor eggs, but what they don’t understand — look at donor eggs for a minute — the overwhelming number of people who use donor eggs are not gay men… it’s women who no longer have any ovarian reserves. They’re either too old, or they have, God forbid, cancer… that rendered them sterile.”

Silverberg continued to stress that political leaders need to be better informed on these issues in order to make the appropriate decisions that take such consequences into consideration. “Of course they should involve experts,” he said. “It’s unintended, I honestly believe that there is just a lack of understanding on the part of so many of our leaders… just because you’re elected to Congress does not mean you’ve completed your OBGYN residency.”

Silverberg also responded to comments made to APR in August by A. Eric Johnston, an attorney and the president of the Alabama Pro-Life Coalition. Johnston had remarked that IVF clinics are underregulated and “above the law” — Silverberg says that this is not the case.

“I think he’s uninformed. I can tell you that in Texas, at my facility, I have to answer to 13 federal, state, and local agencies. Each of them have regulations regarding everything from my license to practice medicine to my license to operate a business,” Silverberg said. “The FDA can come in unannounced, as they do relatively frequently. They come in and they inspect our books, they inspect our records, they make sure that we’re testing for infectious disease, that we’re following all the protocols and all the regulations that there are for donor gametes.”

“The College of American Pathology can come in and inspect my laboratory… the state can come in at any time and inspect us… it’s a lack of understanding for people to say that we are underregulated. I would venture to say that we have much more regulation than the average cardiologist, or the average general surgeon, or the average plastic surgeon,” he continued. “There’s a lot regulation here because we are dealing with human tissue, we’re dealing with eggs, sperm, embryos. It’s just a lack of understanding.”

As for what comes after the HOPE Act, should it pass and be signed into law, Silverberg had one word in mind: “education.”

“There’s a lot of education that we have to do. Right now we have to educate our legislators, but then we’re going to have to educate the public, we’re going to have to educate providers, we’re going to have to educate insurance companies. I mean, there’s a tremendous amount of education we have to do,” he said.

“I’m not a conspiracy theorist. I like to think that people are really wanting to do the right thing and I like to think that people in Washington, our leaders, and the people in our state houses are really wanting to do the right thing also,” Silverberg went on to say. “And when they make rulings that some people think are crazy, or misguided, or whatever, I like to think it’s because we’ve done a bad job of educating them. We’re not there frequently enough or involved in conversations with them enough to be able to help them understand the real physiology of what’s going on there.”

“You know, right now most insurance companies will cover the diagnosis of infertility, but no treatment. Can you imagine if your insurance company would cover the diagnosis of breast cancer but no treatment? The diagnosis of leukemia but no treatment? The diagnosis of cardiovascular disease with no treatment? High blood pressure? Diabetes?” Silverberg said as he stressed the need for both mandated insurance coverage and a better, more widespread understanding of infertility treatment.

“People who think that infertility is an elective condition, again, they’re just misguided,” he said. “My patients didn’t choose to stand in the infertility line any more than anybody else chose to stand in the pancreatic cancer line.”

Silverberg ended our conversation by explaining why IVF does not belong to either side of the pro-life/pro-choice dichotomy, “There is no more pro-life treatment than IVF, it’s just that simple. And number two, you can’t give women choice without giving women choice.”

“What I mean by that is, choice is not just about abortion,” he elaborated. “Choice is about pursuing fertility treatment, choice is about pursuing adoption alternatives. Choice is about pursuing termination options. Choice is about pursuing medical saving treatment, maybe to save a baby that they’re carrying that has some horrible genetic or chromosomal anomaly.”

“So, you know, you can’t just put your toe in the water a little bit and not get your ankle wet or your leg wet. If you believe in choice, then you believe in choice.”

Currently, the future of Alabama’s own fertility clinics continues to hang in the balance. Soon after Alabama’s Supreme Court ruled that embryos could be considered human beings, Gov. Kay Ivey and the Alabama State Legislature passed a law expanding criminal and civil immunity for IVF clinics.

However, patients, providers, and advocates remain wary that the bill’s protections may not be enough to protect access to IVF. A 2018 amendment to the Alabama state constitution still states that “it is the public policy of this state to recognize and support the sanctity of unborn life and the rights of unborn children, including the right to life.”

According to an August report from the New York Times, four of Alabama’s seven fertility clinics have shipped cells and embryos out-of-state since the February ruling due to the ongoing uncertainty surrounding the legality of handling and discarding embryos in the state. Questions about the future of IVF remain, both in Alabama and across the country.