The Supreme Court’s recent ruling to overturn Roe vs. Wade has created a lot of controversy regarding human rights and when exactly those rights begin.
The Supreme Court has granted individual states a lot of power in determining what laws to enact in their states and how to govern their people in accordance with the court’s ruling.
We are all aware of the controversy over abortion that has flooded the country since the ruling. However, many people are unaware of the potential jeopardization of fertility treatments, such as IVF.
The Supreme Court’s ruling made reference to “unborn human beings” and, indirectly, raised the issue of where IVF falls in the abortion spectrum. What are parents to do with embryos that they decide not to transfer? Is discarding those embryos considered abortion under federal law?
Will IVF become illegal? Ultimately, the decision of how the abortion laws will affect fertility treatments is in the states’ hands. If state legislatures begin to consider stored embryos as unborn human life, then laws could move forward that will put restrictions on in vitro fertilization.
Has this begun to take place in some states across the country? How are states handling this issue? I’ve done some digging and tried to find as much information as I could to help you understand what is going on currently and what the future might hold for fertility treatments.
Laws Governing Fertility Treatments
Whether intended or not, state abortion laws have begun to affect the way people view fertility treatments and may or may not result in restrictions on such treatments.
Abortion Regulation To Define Life Beginning at Fertilization
Kentucky is currently attempting to enact an abortion regulation, that will define life as beginning at fertilization. According to the law, the fertilized egg is an unborn human being before it is implanted into the uterus and pregnancy begins. Several other states such as Utah, Louisiana, and Texas have similar language in their current abortion bans that creates a gray area when it comes to IVF.
While the law does not currently ban IVF or other fertility treatments, depending on how it is interpreted, fertility services could be in jeopardy. Because certain questions such as “Is discarding an unused embryo considered abortion?” do not have clear answers, there may be further laws in the future that will put restrictions on IVF treatments in a handful of states.
Personhood bills aim to define human life at the moment of fertilization or conception and grant constitutional rights and privileges to all persons from that moment.
Depending on interpretation, some people fear that personhood bills could protect stored embryos that have not yet been transferred. However, many states that have passed personhood bills have clarified that the bill has no impact on IVF or other reproductive medicine services. More information on these bills can be found here.
IVF and Abortion Bans
Some states, such as Alabama and South Carolina, specifically exempt IVF from their bans on abortion. Other states have restrictions on IVF treatments. In Louisiana, for example, an embryo is considered an unborn person, and unused embryos cannot be discarded unless they fail to develop after a 36-hour waiting period. Most state abortion laws, however, remain silent on whether they apply to IVF treatments.
The inconsistency among the states and the vagueness of many abortion laws demonstrate that the legality of IVF really depends on the state legislature.
Right to Build Families Act of 2022
Senator Tammy Duckworth introduced the Right to Build Families Act to Congress on December 15, 2022. This act would prohibit the restriction of any assisted reproductive technology, including IVF.
If this bill is passed, it would protect families that are seeking fertility treatments and would grant them the right to have access to the reproductive assistance that they need. IVF would not become illegal as many people fear. However, uncertainty still lies in the disposal of unused embryos. That factor of IVF may remain in the hands of the state.
Examples of Cases That Would Violate Laws
Currently, the biggest issue surrounding IVF and its association with abortion laws has to do with the disposal of unused embryos. When a couple is undergoing IVF, they often have several embryos created in order to increase their chances of conceiving. These embryos are often frozen and stored until the couple uses them. If a couple decides not to use some of their embryos, they are usually discarded. However, with the current controversy over when life and personhood begin, disposing of or destroying unused embryos may be considered illegal in some places.
Reproductive Cases That Did Break the Law
While there have not yet been any IVF cases that were considered illegal, healthcare providers in some states are becoming hesitant to offer fertility treatments because of the confusion surrounding what is legal and what is not when it comes to abortions.
Can You Sell Frozen Embryos?
No. Selling frozen embryos is illegal in the U.S.; however, in some instances, unused frozen embryos can be donated instead of being discarded. Donating these embryos can provide hope for those who desperately want children but are unable to do so.
Can You Donate Frozen Embryos?
Many couples store their frozen embryos for future use. However, when they have completed their families, they must decide what to do with the remaining embryos. Donating them to another infertile couple has become an increasingly popular option.
IVF and abortion are tricky topics on their own and get even messier when combined. Fortunately, from what I read in my research, it does not seem like IVF or other ART treatments are going to become a federal offense in the near future. It seems that many government officials still value such treatments and the opportunities they provide for families.