In Vitro Fertilization Is in Trouble As 3 States Try to Criminalize the Destruction of Embryos

After months of top Republicans getting caught on hot mic whispering about plans to police in vitro fertilization, or straight-up saying it, there’s a growing wave of bills in state legislatures taking more direct aim at the process.

Kansas’ legislature on Tuesday advanced a bill that would establish a new crime of “unlawful destruction of a fertilized embryo.” An Arkansas lawmaker introduced a bill that would legally define personhood at fertilization and allow someone to be prosecuted for “wrongful death” of an embryo. West Virginia Republicans have introduced bills that would allow civil lawsuits for loss of an embryo was as a result of “negligence.”

Legislation like this directly implicates IVF: If an embryo is inserted into the uterus and implants to the uterine wall, pregnancy occurs—but the chance of IVF being successful on the first couple attempts stands at just around 50 percent. Embryos that don’t implant are destroyed in the process, and fertility clinics often freeze or dispose of unused embryos. Post-Roe abortion bans that include “life begins at conception” language, like those in Missouri, Texas, and other states, pose a particular threat, as they define “child” as starting at fertilization without specific exceptions for IVF.

Barb Collura, president and CEO of RESOLVE: The National Infertility Association, tells Jezebel that the new bills in Kansas, Arkansas, and West Virginia seem to “specifically single out people who are using different kinds of medical technology” to build their families—especially with the Kansas bill’s “nonsensical” claim that “unlawful abortion” can be “part of the process of artificial insemination.”

Since the fall of Roe, fertility clinics have been acutely aware of the threat they face, and as have their patients: The Wall Street Journal reported in June that some patients began asking IVF providers to move their embryos to states that protect abortion rights. Similarly, providers began urging lawmakers to pass legislation to explicitly protect IVF.

Lauren Wranosky, research associate at Pregnancy Justice, says the wave of new statehouse bills is cause for more concern than ever. Kansas’ bill is particularly worrisome as it would be “the first in the country to create a new, unique crime for destroying a fertilized embryo.” Arkansas’ bill would effectively “remove language that protects IVF in the state’s Constitution”—and while it doesn’t explicitly criminalize IVF, it would severely limit its availability by allowing only licensed physicians to offer it. Currently, Wranosky notes, only 6% of people who perform IVF are licensed physicians; most are nurses, technicians, and embryologists.

Meanwhile, West Virginia’s bills could potentially make IVF providers sitting ducks for costly, bankruptcy-inducing lawsuits. Language in one of the bills states that it won’t “require” IVF to be criminalized, but Wranosky says this isn’t reassuring. This phrasing keeps the door open for criminalization, and “all it would take is an over-zealous prosecutor,” she says, of which there are clearly many, considering the sharp increase in pregnancy-related criminal charges in recent years.

Collura says that among people she’s worked with or spoken to about infertility struggles, she’s concerned that many still “see abortion bans and threats to fertility technology as separate issues.” Policies that appear unrelated to abortion bans have long targeted pregnant people—and fertility technology. Think: fetal homicide laws—originally created to address the dire issue of homicide as a leading cause of death for pregnant people—misused by prosecutors to criminalize people for pregnancy loss or abortion; bills to require child support payments for embryos; bills to allow pregnant people to drive in HOV lanes; court cases to charge pregnant people who cross state lines without their partner’s consent with kidnapping; custody battles over frozen embryos that could potentially force someone to become biological co-parents with an abusive ex.

“All of this, the new bills we’re seeing, is about subjecting pregnant people to more state control,” Warnosky said. That people struggling with infertility could be disproportionately harmed isn’t an accident: “There’s always been implicit bias toward people who can’t conceive naturally, which is seen as a failure in your feminine capacity, in historical notions of what it means to be someone with a uterus.” There’s already persistent stigma around infertility—the implicit threat of criminalization presents an added layer of cruelty.

Yet, IVF is broadly popular: In 2011, a coalition of reproductive rights advocates and IVF supporters defeated a Mississippi ballot measure to enact fetal personhood. Sen. Tammy Duckworth (D-IL) last year introduced the Right To Build Families Act to create a federal right to use IVF and other fertility technologies and prohibit restrictions on individuals seeking treatments. In 2018, Duckworth became the first senator to give birth in office after using IVF.

But with Duckworth’s bill stalled by Republicans, and this wave of bills in Kansas, Arkansas, and West Virginia, Collura remains concerned about the future. “I’ve heard from people who are pausing fertility treatments, IVF, after Roe, from people who are pausing even trying to get pregnant at all, because they’re fearful about complications, what may or may not be available to them,” Collura said. In the absence of proactive policy change to protect IVF and pregnant people’s rights, “we’re seeing lives uprooted.”