Janene Oleaga, Esq.
IVF in a Dobbs World
Updated: Jan 3
This article does not constitute legal advice. Reading this article and responding does not create an attorney-client relationship.
Always consult with an assisted reproduction attorney in your state when making legal decisions relating to
cryopreserved genetic material, assisted reproduction, parentage, or estate planning.
This article does not constitute medical advice. Always consult with your selected medical provider regarding personal medical decisions.
In Dobbs the Supreme Court overturned Roe v. Wade and Casey v. Planned Parenthood and punted the legalization of abortion to the states. In denying a federally protected Constitutional right to obtain an abortion, individual states can now enact abortion-restricting legislation so long as the laws pass a "rational basis" test - the lowest standard of constitutional review. SCOTUS' failure to protect the bodily autonomy of women at the federal level enabled states like Texas, Oklahoma, and Florida to compete for the crown: worst-for-women's-rights.
Texas and Louisiana are enforcing abortion bans including criminal and civil penalties.
Alabama has some of the most restrictive abortion laws in the US, prohibiting all abortion after conception - which Alabama defines as the moment sperm meets egg.
In Florida, just this week, DeSantis expressed his desire to sign a "great life legislation" to the Orlando Sentinel, further restricting access to abortion in Florida.
For a full summary of the abortion laws in every state, see the below map: Abortion Laws by State published by Nancy Northrup and the team at Center for Reproductive Rights.
Why Fertility Patients Should Care About Abortion
It may seem strange to think about ending a pregnancy when you are dealing with infertility, but the two are inextricably intertwined. Why?
IVF will be impacted by changing abortion laws.
Depending on when "life" or "personhood" begins - as defined by the law in some states and not science - can change the course or availability of IVF treatment for fertility patients.
If personhood begins when sperm meets egg (as in Alabama) what happens when IVF patients have a successful IVF cycle resulting in 10+ or even 20+ embryos? Isn't the goal of IVF to create as many viable and healthy embryos as possible?
What happens to your remaining embryos once your family is complete?
Will you be able - or even required - to donate remaining embryos?
If these embryos are considered people under the law, will they require child support?
[Let's not forget the time Sofia Vergara's embryos sued her in Louisiana demanding to be brought to life!]
Will genetic testing of embryos be available?
When embryos are submitted for genetic tested, hopeful parents are able to select which embryos to transfer based on the genetic testing results. Is there a point to genetically testing embryos at all without the ability to decide which embryos to transfer?
Pay Attention to Your IVF Clinic Forms
When patients are undergoing fertility treatments with the assistance of a reproductive endocrinologist at a fertility clinic, they are required to complete the clinic's consent forms before receiving treatment. These consent forms, generally completed by the hopeful parents during early days of family planning, often require that the couple decide who will retain control of the embryos should the couple split up, divorce, or have differing opinions about moving forward with embryo transfer in the hopes of conceiving a child.
There has been much litigation surrounding the disposition of embryos in the context of divorce. Are embryos marital property subject to equitable distribution? Should a court rely on a clinic forms in determining what to do with embryos in the context of a dispute? Are they people? Property? Something in between? Will where you store your embryos determine whether or not you get to use them for procreation if your partner disagrees? More on embryo disposition agreements here.
What about other IVF restrictions?
The United Kingdom, Germany, and Australia, place restrictions on the number of embryos a couple may cryopreserve through IVF. The United States places no federal restrictions regarding IVF or the number of embryos a couple is permitted to create, however, there is nothing from preventing the states from regulating storage of embryos within their borders via state legislation. Arizona and Louisiana already have controversial laws regarding the disposition of embryos.
In Arizona, embryos are awarded to the individual more likely to bring them to life in the context of a divorce. A.R.S. § 25-318.03 (2018).
In Louisiana, embryos are deemed "juridical persons" capable of bringing suit demanding to be brought to life. La. Rev. Stat. Ann. §9-121-133 (2008).
What about multifetal pregnancy?
If selective reduction isn't available in your state due to restrictive abortion laws, it may affect the medical decision making process of your reproductive endocrinologist or fertility doctor in their approach to your fertility medications. It could also change your fertility doctor's recommendations regarding a double embryo transfer or single embryo transfer if selective reduction isn't available in your state. The positives of a double embryo transfer to achieve one viable fetus - or twins - may be outweighed by a lack of legal ability to reduce a multifetal pregnancy in a state with restrictive abortion laws.
Is the next step for anti-abortion states to prohibit the IVF laboratory process entirely?
The Right to Build Families Act of 2022
The Right to Build Families Act of 2022 introduced by Senator Tammy Duckworth, Senator Patty Murray, and Representative Susan Wild aims to protect IVF and assisted reproductive technology for everyone throughout every state in the US.
“With Roe v. Wade thrown out by the Supreme Court and some states across the country looking to limit our most basic rights, millions of Americans are understandably worried about their access to healthcare, including access to IVF and other assisted reproductive technology that they need to start or grow their families,” - Senator Tammy Duckworth
If you want to protect assisted reproduction, IVF, and other fertility treatments, write a letter to your state representatives today: Tell Congress: I Support The Right to Build Families Act of 2022.