16 Dec 2022 Fighting to Protect IVF in the United States Senate

Today, U.S. Senator Tammy Duckworth (D-IL), U.S. Senator Patty Murray (D-WA)—Chair of the Senate Committee on Health, Education, Labor and Pensions (HELP)—as well as U.S. Representative Susan Wild (D-PA-07), are introducing legislation to protect every American’s right to access in-vitro fertilization (IVF) and other assisted reproductive technology (ART) that millions of Americans need to have children, including Senator Duckworth who relied on IVF to have her two daughters. The Right to Build Families Act of 2022 would prohibit limiting access to IVF or any ART services to any American—regardless of their zip code.

“This is the part of the abortion debate that most Americans were not aware of until Roe v. Wade fell.” – Senator Tammy Duckworth (D – Illinois), upon introducing a bill to protect fertility treatments with Senator Patty Murray (D – Washington.)

When Roe v. Wade was overturned by the United States Supreme Court, it ended nationwide protection for a woman to choose an abortion, a right that had existed for nearly half a century. It would now be left to the states to decide if a woman would be allowed to have bodily autonomy or not, creating a patchwork of differing laws from state to state.

Anti-choice proponents immediately began advocating for a national ban on abortion. In a number of states, Republican lawmakers have proposed legislation that would restrict access to ART services. They also advanced their efforts to end IVF because of their belief that life begins at the moment of conception.

With the Supreme Court overturning Roe and some states enacting extreme abortion bans, many women have not only seen their constitutional right to abortion ripped away from them, but their ability to get treatment for cancer, lupus, and more—and to access IVF and other ART services in order to build a family—has also been jeopardized. The new patchwork of state abortion bans has created significant confusion among patients and providers alike about what services doctors can and cannot provide—including ART services—in states with the most restrictive laws. These threats have led IVF centers to call for new protections.

As we previously wrote, the challenge is about more than abortion rights. With Roe v. Wade overturned:

Many of the miraculous technological advances that today help millions of people suffering from infertility, as well as single and LGBTQ people, become parents could be banned. Even fertility preservation, the use of cryopreservation or freezing to preserve sperm, eggs, or reproductive organs in the event of disease, injury, or simply as a family-planning strategy, could become illegal if the right to abortion is overturned.

For example, IVF, a common treatment for infertility, typically results in the creation of multiple embryos. Typically, not all are used. The reproductive specialist, using advanced tools, selects the strongest, most vital embryos for implantation into the uterus of the intended mother or a surrogate. While once best practice would be to implant multiple embryos to increase the odds of a successful pregnancy, today better technology and higher success rates dictate that only a single embryo be implanted in most cases, preferable for the health of both the mother/surrogate and child.

But what happens to those unused embryos? Those deemed unviable are discarded. In some cases, intended parents opt to preserve via cryopreservation “extra” viable embryos for potential use at a future time. Years later, they may decide to use the embryos to have another child. Or they may not.

The principle of fetal viability now under attack at the Supreme Court is relevant in these kinds of fertility treatments. In banning abortion earlier and earlier in the pregnancy, the laws are protecting the rights of the fetus before the fetus would be able to survive outside a woman’s body—in some cases placing the rights of the fetus above the rights of the woman carrying the pregnancy. If the rights of a fetus are protected at six weeks, when it would not survive outside of the womb, why stop there? Why not protect those rights from the point of conception?

LOSS OF ABORTION RIGHTS WOULD OPEN DOOR FOR FETAL 'PERSONHOOD' LAWS

Some states already have gone there. Under Missouri’s “personhood” law, courts have ruled that unborn embryos are persons for the purposes of wrongful death claims, manslaughter and first-degree murder charges. Under Louisiana’s law, yet to be tested in court, unborn embryos are designated “juridical persons” and are prohibited from destruction, with rights to sue and be sued, with disputes to be resolved in the embryos’ “best interests.”

So far, with the constitutional protections of Roe and Casey intact, women’s rights to abortion have not been denied under state personhood laws. But if the conservative Court invalidates the fetal “viability” standard, Americans’ access to treatment for infertility and other reproductive services may hinge on when each state decides human life begins.

OVERTURNING ROE RISKS DREAMS OF PARENTHOOD FOR INFERTILE, SINGLE, LGBT PEOPLE

Anti-choice advocates in Ohio, Virginia, and Texas are currently examining legislation that would make IVF illegal. Given that most abortions are now banned in 13 states in the United States, in those states, the risk that IVF could be banned or severely restricted as well, is very, very real.

Senator Tammy Duckworth’s journey to parenthood took a decade. After she returned wounded from her service in Iraq, she spoke to her OB/GYN at her Veterans Affairs hospital about trying to have a child. She was referred to a fertility specialist and eventually used IVF to conceive her two daughters. During her journey, she had five fertilized eggs. Three were discarded because they were not viable, but that would “ now potentially [be] manslaughter in some of these states,” she said.

“I also have a fertilized egg[, an embryo,] that’s frozen,” Duckworth continued. “My husband and I haven’t decided what we will do with it, but the head of the Texas Right to Life organization that wrote the bounty law for Texas has come out and specifically said he’s going after IVF next, and he wants control of the embryos.”

The Right to Build Families Act of 2022 would:

- Prohibit limiting any individual from accessing ART services or retaining their reproductive genetic materials, including gametes;

- Protect healthcare providers who provide ART services or related counseling and information;

- Allow the Department of Justice to pursue civil action against states that violate the legislation; and

- Create a private right of action for individuals and healthcare providers in states that have limited access to ART services.

This legislation is endorsed by: American College of Obstetricians and Gynecologists; American Humanist Association; American Society for Reproductive Medicine; Center for Reproductive Rights; HealthyWomen; National Council of Jewish Women; National Partnership for Women and Families; Physicians for Reproductive Health; and RESOLVE: The National Infertility Association.

As we look forward to 2023 and all the miraculous possibilities the coming year holds, if we can do nothing else, we must make sure that every American knows exactly how much all of us have to lose and how important it is to voice your support of this important legislation in every possible way.