In Vitro Fertilization and the Changing Political Landscape

Infertility affects millions of Americans who want to start a family. For many of these people, the path forward is an assisted reproductive technology (ART) technology, such as in vitro fertilization (IVF). IVF represents more than 99% of the ART procedures performed annually in the U.S., but the overturning of Roe v. Wade has cast doubt on whether these procedures are still legal.

What Is IVF?

IVF treatment involves a series of procedures through which pregnancy is possible. It is a treatment for infertility and also a means of preventing passing on negative genetic traits. The process involves fertilizing mature eggs with sperm in a lab. The fertilized eggs are then implanted in a female in the hopes of making her pregnant. That female may be the mother. It can also be a surrogate in cases where the mother would not be able to carry the baby to term.

Is IVF Legal?

While there are state laws that prohibit embryo research, there have historically been no state laws in the U.S. that forbid IVF. It is important to note that not all states have made IVF explicitly legal. This important particularly after the U.S. Supreme Court overturned Roe v. Wade. That allowed the triggering of state laws that were on the books but suppressed up until that point. None of those trigger laws prohibit IVF. Most were written long before IVF was a concept. However, many of them include language that may open the doors for IVF to be illegalized in those states.

The Anti-Abortion Factor

Research shows that the vast majority of Americans support IVF. Even among groups that are very conservative, support is high. Any legal ramifications to IVF have largely been collateral damage from the debate over reproductive rights at large. Republicans are broadly against abortion and fought to overturn Roe v. Wade ostensibly in order to revert rights to the state. In order to make abortion illegal, laws will often define personhood as starting at the point of conception. This is where it gets murky. Through that definition, a person is created at the moment the lab fertilizes the egg in an IVF procedure.

What Is the Debate Over IVF?

There is not much debate over IVF itself. Most Americans agree that IVF should be legal and want it protected. Among those who want abortion banned, there is concern over definitions and language. Could explicitly legalizing IVF create cracks in the laws prohibiting abortion? There are some, particularly religious conservatives, who argue that IVF is unnatural, but those people are a minority according to most major polls on the subject.

The Law to Protect Doctors

Alabama has been at the center of the IVF debate. It has some of the strictest anti-abortion laws on record. These laws include specific language, such as the destruction of extrauterine children constituting a wrongful death, that casts doubt on whether IVF is legal. The trigger laws even spurred some IVF clinics to stop operating. In response, however, Alabama’s majority-Republican state legislature passed a law that protected IVF. New Jersey adoption lawyers have noted that the law was not a perfect solution. IVF proponents argue it protects doctors too much from malpractice lawsuits and therefore puts families at greater risk.

Uncertainty for Families and Surrogates

As of 2024, there remains doubt for families in more than a dozen states. There are already fewer doctors in those states offering IVF treatment. The costs are going up, and the waiting lists are getting longer. There are also many families with embryos in storage that are unsure how to proceed. In Texas, for instance, there is fear that the state will make it illegal to destroy embryos in 2025.

Legal Advice and Representation for Families

If you live in New Jersey and are seeking to start a family through alternative means, the law firm of Cofsky & Zeidman is here to help. Donald Cofsky has many decades of experience as a New Jersey adoption lawyer as well as in ART and has helped more than 1,500 families achieve their goals. You can contact us online, or call our main office in Haddonfield at (856) 429-5005.