Does Supreme Court’s Abortion Decision Threaten Right to Fertility Treatment?

The U.S. Supreme Court’s 6-3 decision in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade, the 1973 case establishing women’s constitutional right to choose, had an obvious and almost immediate impact in halting abortion services in much of the United States. But the June 24, 2022, decision continues to ripple, and the ultimate impact on fertility treatments such as IVF and fertility preservation as well as other reproductive technologies such as contraception remains to be seen.

Nearly every day since the Supreme Court’s Dobbs decision stripping American women of their right to bodily autonomy has brought new reports of the resulting pain, death and chaos in the U.S. health system and in the day-to-day lives of American families. In several states with so-called “trigger laws,” near-total abortion bans took effect as soon as the Court struck Roe down. Other states, such as Michigan, are struggling to decide whether decades-old, outdated laws superseded by Roe in 1973 are now in effect. Progressive states with the political will to defend women’s equality responded to the Court’s ruling with legislative efforts to protect reproductive freedom, both for their own citizens and for those from other states seeking help.

Does Supreme Court Dobbs Decision Impact Reproductive Rights?

But the Court’s Dobbs decision, which returns the right to regulate or ban abortion to state courts and legislators (and theoretically federal legislators), also raises concerns about whether the use of assisted reproductive technology such as IVF will violate the law in states with strict abortion bans.

The arguments the conservative justices used to support their Dobbs decision transcend “merely” the issue of abortion rights. Justice Samuel Alito writes in the majority opinion that “this decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”

Yet the Court’s 1973 Roe v. Wade decision was based on the same presumed human right to privacy on which numerous other decisions, before and after, were based, including the right of married couples to receive information about and use contraceptives, the right of consenting adults to have sex in the privacy of their own homes, and the right of LGBTQ people to marry someone of the same sex. In the Dobbs opinion, Alito writes, “The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision. If the right isn’t specifically listed in the U.S. Constitution, Alito continues, it must be “‘deeply rooted in this Nation’s history and tradition’ and ‘implicit in the concept of ordered liberty’” in order to be a protected right.

Alito’s opinion seeks to allay concerns about threats to other civil rights, calling abortion a “unique act” that “terminates ‘life or potential life.’” That language is cold comfort to those concerned about Americans’ rights to assisted reproductive technology.

Today IVF and other fertility treatments are still legal in all 50 U.S. states and Washington, DC. But many states have enacted or tried to enact laws that define human life as beginning at conception and that confer the rights of personhood on fertilized embryos, even those too immature to survive outside the womb. The legal concept of “personhood” is already being litigated in embryo disposition and divorce cases, as we have reported.

Northern Kentucky University law professor Judith Daar, an expert in reproductive health, notes that the Court itself raised the issue of personhood in Dobbs by referring to “unborn human beings.” “If an early embryo is deemed a person for purposes of legal rights and protections, any action short of transfer to the uterus could be seen as violating its right to life under these new laws,” Daar told NPR.

Will Dobbs Decision Make IVF Illegal?

That’s in part because the routine process of IVF and other types of reproductive technology may in some cases destroy fertilized embryos. When patients undertake IVF, typically multiple eggs are harvested via a medical procedure and fertilized with sperm outside a woman’s body to create multiple embryos. The embryos are then evaluated to see which are viable and most likely to survive, and frozen, or cryopreserved, for implantation. In many cases, the goal of IVF is to create as many embryos as possible to maximize the number of viable embryos and the odds of success.

Best practices today call for implantation of a single embryo, leaving a great likelihood that remaining embryos will be frozen for future use (thawing and implantation). Even the acts of thawing or implantation carry the potential risk of destroying the embryos. Conversely, if multiple embryos are implanted, selective fetal reduction (essentially early abortion) may be used to reduce the risks to the mother (or surrogate) and offspring that are inherent in pregnancy with multiples.

“If an early embryo is deemed a person for purposes of legal rights and protections, any action short of transfer to the uterus could be seen as violating its right to life under these new laws,” Daar said.

Will State Abortion Bans Outlaw Embryo Freezing and Fertility Preservation?

If embryos are legal persons, is it legal to freeze them?

Cryopreservation, or freezing, of embryos has vastly expanded the potential of assisted reproduction. With improved technologies, even embryos decades old have been successfully thawed, implanted and carried to birth. Perfection of the technology allows people to preserve the possibility of becoming parents in the future, such as for those who must undergo fertility-damaging medical treatments (e.g., radiation or chemotherapy), soldiers preparing for combat missions, or individuals seeking to delay parenthood for financial or career reasons.

Today, cryopreservation also is a routine part of the IVF process that has improved outcomes over procedures using unfrozen embryos. Many intended parents undergoing IVF opt to freeze and store excess embryos in the event they may want to add to their families in the future. Storage costs are typically several hundred dollars annually.

Once their families are complete, parents may decide to discard any remaining viable embryos, donate them to another prospective parent, or donate them for scientific research.

State personhood laws could remove those options for intended parents, potentially prohibiting the creation of multiple embryos. As Barb Collura, president and CEO of RESOLVE: The National Fertility Association, told NPR, while there is no legal precedent for prosecuting physicians who do not implant embryos, providers are concerned about the implications for IVF in states with strict abortion bans. “If you believe that an embryo is a person, then perhaps even if that embryo is outside of the body, you want to ensure that it is protected and no harm comes to it,” she said. “And that’s where we run into some problems. Because there are things that are done as standard practice in a laboratory in the course of IVF that some may deem as causing harm to that embryo.”

Will State Abortion Bans Prevent Genetic Testing of Embryos?

Many recently enacted state abortion bans have few exceptions, some only in the case of an inviable fetus or endangerment of the mother’s life. Diagnosis of a severe illness or disability in the fetus would not qualify.

Quinn Bradlee, who suffers from a rare genetic condition called DiGeorge syndrome or VDFS, and his wife opted to use IVF and preimplantation testing to create their family in order to avoid the 50 percent chance Bradlee would pass the condition on to a child. As Bradlee wrote in Politico, “My wife and I are doing IVF because we wanted to avoid a situation where she gets pregnant, discovers an abnormality through genetic testing and then needs to have an abortion….”

As Bradlee notes, he and his wife have the means to bear the expense of IVF and testing before pregnancy; other families less well off may only learn of an abnormality through fetal testing during pregnancy. For those families, an absolute abortion ban means the decision of whether or not to bring a child into the world with a serious condition would be taken from them.

Will State Abortion Bans Lead to Loss of Fertility Insurance Benefits?

A small but growing number of states currently mandate employee insurance benefits for fertility treatment and reproductive health care. Major corporations, particularly in the tech sector, have embraced the trend, using it is as a recruitment perk as more young workers seek to delay parenthood via fertility preservation technology. The trend for employers and insurers to cover at least some types of treatment has made assisted reproductive technology more affordable, and thus more accessible, to more people than ever before.

Some providers worry the Supreme Court’s Dobbs decision may have a “chilling effect” on the trend. Dr. Samuel E. Brown, head of one of Florida’s largest fertility clinics, says that laws restricting the treatment of embryos could result in lengthier IVF processes along with higher costs. “Any roadblocks or increase in cost for fertility treatment can potentially scare away the insurance payers, where they don’t want to take the burden of that extra cost,” the doctor told Newsy.

IVF, Assisted Reproduction Are ‘Pro-Life’

While the Supreme Court’s denial of women’s right to choose in its Dobbs decision has thrown countless families into turmoil and endangered women’s lives, it’s important to remember that IVF and other forms of assisted reproduction are still legal today. Answers to the questions addressed above no doubt will be hammered out in state and federal courts and legislatures for years to come.

Meanwhile, thousands of families have benefited from the miracles of modern technology that have made parenthood possible for people who, in another time or place, would have remained childless.

Fertility treatment technology is overwhelmingly popular with much of America. Even many anti-abortion politicians and activists are quick to deny that the Court’s overturning of Roe will impact IVF and other assisted reproduction. But a new policy paper by the American Society for Reproductive Medicine (ASRM) cautions that “overly broad” language in state abortion bans could backfire, as reported by The Hill. For example, Utah’s abortion “trigger law” defines abortion as “intentional killing or attempted killing of a live unborn child through a medical procedure carried out by a physician or through a substance used under the direction of a physician,” but fails to define “live unborn child.” The lack of definition means the law could be interpreted to include the discarding or donation of embryos, the ASRM paper concludes.

According to RESOLVE, about one in eight U.S. couples deal with some form of infertility. In 2019, 2 percent of all U.S. babies born, some 78,000, were conceived using assisted reproduction. Those 78,000 babies were celebrated and welcomed into their families with just as much joy as the other 3,667,540 American babies were. That’s “pro-life.” While recent attacks on women’s rights and all American’s rights to reproductive autonomy are a troubling turn, we at IFLG remain convinced that the American people will reject (and we remain ready to stand up against) attempts by conservative lawmakers and religious extremists to outlaw these miraculous, life-affirming technologies.


Richard Vaughn

Attorney Rich Vaughn is founder and principal of International Fertility Law Group, one of the world’s largest and best-known law firms focused exclusively on assisted reproductive technology, or ART, including in vitro fertilization (IVF), surrogacy, sperm donation or egg donation. Rich is co-author of the book “Developing A Successful Assisted Reproduction Technology Law Practice,” American Bar Association Publishing, 2017.

Peiya Wang
Paralegal (律师助理)

Peiya Wang joined IFLG as a paralegal in 2015, where she manages surrogacy, egg donation and parental establishment cases and provides translation services for many of IFLG’s international clients. Peiya moved to the United States in 2012 to attend Northeastern University in Boston, Massachusetts, receiving a Master of Science degree in Global Studies and International Affairs in 2014. Peiya moved to Los Angeles in 2015, received her paralegal certification from UCLA Extension, and obtained her second Master of Science degree in Legal Studies from Loyola Law School. Peiya relocated back to her hometown, Beijing, China in 2019 and works from IFLG’s Beijing office. When away from the office, Peiya is a dragon boat paddler and a ballroom dancer, where she favors Rumbas and Cha-chas. She is fluent in Mandarin and English.

Luis Sosa

Luis R. Sosa joined IFLG as a paralegal in 2016, where he enjoys pursuing his passion for family and reproductive law. While working toward his bachelor’s degree at Florida International University which he received in 2013, Luis worked as a paralegal and legal assistant for family law litigation firms in Miami and Washington, D.C. As a paralegal and case manager for IFLG, Luis, who is bilingual in English and Spanish, manages surrogacy, egg donation and other reproductive law cases. Luis has worked for IFLG in both Los Angeles as well as San Francisco, and is currently based in Dallas, Texas. In addition to spending time with husband Randy and dog Marty, Luis enjoys being outdoors and appreciating the arts.

Toni Hughes

After receiving her B.S. in Business Management, Toni joined IFLG to pursue her dream of working in the legal field. As a Paralegal with over 10 years of experience in the assisted reproduction technology field, Toni is our Managing Paralegal, responsible for training and managing our paralegal staff. From drafting legal documents to assisting our clients with post-birth matters, Toni embraces the challenge of learning something new in this field each day. Besides spending time with her son, Jordan, Toni enjoys exploring new things, cooking, spending time with family and friends, and serving as a Youth Advisor for “Next Generation.”


Kim has over 30 years of experience in the legal field and has worked exclusively in surrogacy and assisted reproduction law since 1999. Kim is a senior case manager responsible for managing parental establishment cases and interacting with IFLG’s Of Counsel attorneys across the country. With three children of her own, Kim understands the importance of family and finds working in this area of law a rewarding experience.

Rich Vaughn

Attorney Rich Vaughn combined his personal passion as a father of twin boys born via assisted reproductive technology (ART) with more than 20 years of experience in business and technology law to build International Fertility Law Group. Today IFLG is one of the most successful and best-known law firms in the world focused exclusively on fertility law, helping thousands of intended parents through empathetic listening, compassionate guidance, and unmatched legal expertise. As an advocate for reproductive freedom, Rich also contributes his knowledge and time to improving the understanding and practice of ART law, most recently as a founder of and speaker at the first Cambridge University International Surrogacy Symposium held in June 2019, as immediate past chair of the American Bar Association ART Committee, and as a popular presenter to law schools, faculty and advocacy organizations all over the world.

Elizabeth Tamayo

Elizabeth received her Bachelors of Science degree in Criminal Justice from California State University of Los Angeles. Shortly after graduating, she continued her education at the University of California, Los Angeles where she obtained her Paralegal certificate. Elizabeth is fluent in Spanish and has been in the legal field since 2009. She is excited to be a part of the IFLG Team helping families realize their dreams.

Sunny Chien

Sunny joined IFLG as a paralegal in 2017, where she manages surrogacy, egg donation and parental establishment cases for many of IFLG’s international clients. She holds a Bachelor of Arts degree in Philosophy from California State University of Los Angeles, where she graduated cum laude. Sunny is bilingual in English and Mandarin and has extensive experience as a legal assistant and paralegal at Los Angeles-area law firms. She is excited to be part of the IFLG team. In her spare time, Sunny enjoys spending time with her family and their dog, going to the beach, cooking, and being outdoors.

Los Angeles

5757 Wilshire Blvd., Suite 645

Los Angeles, CA 90036

Phone:  +1 323 331 9343

Email:  info@iflg.net

Website:  www.iflg.net

New York

501 Fifth Avenue, Suite 1900

New York, NY 10017

Phone:  +1 844 400 2016

Email:  info@iflg.net

Website:  www.iflg.net

Molly O'Brien

Fertility law attorney Molly O’Brien began working in the field of assisted reproduction technology (ART) in 2005, at an egg donation agency and a surrogacy agency where she became familiar with all aspects of in-vitro fertilization, egg donation and the financial aspects of surrogacy. Since becoming an attorney in 2011, Molly has drafted and negotiated surrogacy, egg donation, sperm donation embryo donation agreements for hundreds of her clients all over the world.

Phoebe Sadler

Fertility law attorney Phoebe Sadler has a background in family law and has been practicing exclusively in the area of assisted reproduction technology (ART) law since 2018.

Rubina Aslanyan

Rubina has an extensive background in the legal field as a paralegal in Family Law and has worked in surrogacy and assisted reproduction law since 2012. Her area of focus is in managing and assisting clients with surrogacy, egg donation, and parental establishment cases for many of IFLG’s domestic and international clients. During her spare time, Rubina enjoys spending time with her family and dog Bella, traveling and cooking.

Alexander Espinoza
Legal Assistant

Alexander joined IFLG as a legal assistant in 2019, where he manages surrogacy, egg donation and parental establishment cases. Alex is bilingual in English and Spanish and has been in the legal field for 23 years. Alex is excited to join the IFLG team and pursuing his will to help others in the reproductive law process. In his spare time he loves spending time with his family and friends, being outdoors, road trips, loves music and dancing.

Cara Stecker
Senior Paralegal

After receiving her paralegal certificate in 2005, Cara began working in assisted reproductive law. During the fifteen years Cara has worked in this field, she has gained a wide range of experience and knowledge that she uses to help better assist clients and those involved in the assisted reproductive journey. Cara’s primary roles involve managing parental establishment matters and coordination with IFLG’s Of Counsel attorney network, drafting contracts and parental establishment court documents and providing support to other team members. Cara finds great joy in being a small part of a team of caring people who help others achieve their dream of having a family. In her spare time, Cara enjoys spending time with her husband and three children, watching her children play the sports they love, and she enjoys, running, cycling and exploring the outdoors in the sun.

Stephanie Kimble

Stephanie received her BS in History and Political Thought from Concordia University Irvine in 2015 and her Paralegal Certificate from University of San Diego later that same year. She has been working as a Paralegal since 2016 in Family and Reproductive Law. She is excited to be part of International Fertility Law Group working on managing Surrogacy, Egg donation and Parental Establishment Cases.

Trish Pittman
Assistant Financial Coordinator

With more than 20 years of experience in the field of accounting, Trish joined the IFLG team in 2019 as Assistant Financial Coordinator. Her client-facing focus at IFLG is to assist with all client trust accounting. Trish is the mother of two daughters and enjoys spending time teaching and learning new things from them. In her free time, she loves long walks in the park and reading suspense and mystery novels.

Katie Deaquino
Senior Paralegal

Katie is a Senior Paralegal with IFLG and has dedicated over sixteen years to the areas of surrogacy and reproductive law. She received her Paralegal Certificate from Coastline Community College and has worked with some of the top law firms in the assisted reproduction community. Katie is also a commissioned Notary Public. With IFLG, Katie manages Surrogacy, Egg Donation, and Parental Establishment cases and provides support to other IFLG team members. Katie truly enjoys helping others build their families through assisted reproduction and is thankful she has had the rewarding experience of assisting IFLG clients. Katie often spends her free time with her Husband, four young children and her bulldog “Bella”.

Elsa Jimenez
Legal Assistant

Elsa joined IFLG as a Legal Assistant in 2019, bringing more than 35 years of experience working in the legal profession (concentrating in tort and litigation matters). At IFLG she assists surrogates with their surrogacy and parental matters. The oldest of five siblings, born and raised in East Los Angeles to Mexican immigrant parents, Elsa loves “seeing the beauty of families forming” through assisted reproductive technology. She and her husband Carlos have four children and one grandson. Elsa enjoys jazz and ’80s music, being outdoors in nature, collecting teacups and tea pots, and spending time with her close-knit family.