For Reproductive Parity, We Need Regulatory Clarity

A fertility clinician working at an in vitro fertilization laboratory. Photo courtesy of Galina Fomina.

The overturning of Roe v. Wade in June 2022 sent shockwaves throughout the country. Legislators and laypeople alike have struggled to determine how to define life before birth as well as the implications of such definitions in the absence of constitutional protections for abortion. However, one unexpected industry finds itself particularly affected by the aftershocks of this ruling: the fertility industry. 

When I started writing about this topic, almost all of my peers wanted to contribute their stories to the column. Practically every person I spoke to gave me the same response: “You should write about my family,” or “I would be the perfect example!” Even within my own family, there are many whose stories would make for the perfect personal anecdote. I struggled to find a single person whose family or friends had not interacted with the fertility industry in some way. And this is no coincidence. Nearly half of all adults in the United States have either personally utilized or know someone who has relied on fertility treatments. This seemingly ubiquitous connection only underscores the fact that a robust fertility industry is increasingly becoming a human need. Threats to the industry go beyond politics; attacks against fertility are attacks against humanity.

While abortion bans most directly impact access to reproductive care, the end of constitutional protection for abortions also opened the door for restrictions on in vitro fertilization (IVF), surrogacy, and other assistive reproductive technologies (ART). Many states have already proposed or enacted abortion restrictions that include language that could realistically limit access to reproductive care. Alabama has already done just that, with its supreme court deciding that the Wrongful Death Act of 1872 applied just as much to “extrauterine children” as the average “minor child,” effectively rendering the disposal of frozen embryos an act constituting the wrongful death of a minor. This sudden threat leaves fertility clinics and their patients moored in uncertain waters at a point in life where already so much is unsure. How did an industry dedicated to creating life get caught up in anti-abortion crossfire? What do looming legal changes mean for people struggling with infertility? As reproductive freedom evaporates, the liberty to build a family also hangs in the balance.

Since the first IVF baby was born in the United States in 1981, the use of assisted reproductive technology has steadily risen to help people with fertility problems conceive. ART cycles have nearly doubled over the last decade, with over 97,000 live-born infants per year. As infertility diagnoses increase and social stigma around treatment fades, demand continues to surge. America’s fertility industry was valued at nearly $7 billion in 2022, with projections it could exceed $11 billion by 2025. IVF has shifted from an experimental procedure into a vital reproductive treatment, relied upon by hundreds of thousands striving to complete their families each year.

The relationship between abortion and IVF in the post-Roe United States boils down to the ambiguous legal status of embryos. An abortion ban that defines life as beginning at fertilization could also classify embryos created through IVF as legal persons with rights. According to Arkansas Code § 5-61-303, an abortion is defined as an act that will “with reasonable likelihood cause the death of the unborn child.” An unborn child, in this context, is “an individual organism of the species Homo sapiens from fertilization until live birth.” Similarly, Tennessee’s Human Life Protection Act classifies an unborn child as a “living member of the species [...] throughout the entire embryonic and fetal stages of the unborn child from fertilization until birth.” A number of fertility clinics have already warned patients that accessible treatment is unlikely to continue for much longer. 

Many laws and regulations attempt to ascribe this standard of “personhood” to embryos, which would include the hundreds of thousands of them that are cryopreserved in fertility clinics across the country. If granted the appropriate legal status, as in the Alabama case cited above, these frozen embryos could not be discarded or used in research without potentially opening the door to lawsuits or even murder charges. The unavoidable charges of storing frozen eggs, which can reach over $500 per year, is a cost that would only create even more barriers. The ambiguous personhood of embryos also implicates IVF practices, such as selective reduction, which are used to prevent multiple pregnancies. Moreover, issues like surrogate contracts and custody of unused embryos would be thrown into legal limbo. Essentially, granting an embryo the full rights of a person could make IVF clinically and legally unfeasible. Once a last hope for aspiring parents, IVF could soon pose legal risks for both doctors and the patients who rely on them.

The path forward for reproductive medicine remains alarmingly unclear even in states seeking to protect abortion rights. Although some states such as Connecticut and New York have laws shielding reproductive health providers, the majority of states lack robust safeguards for fertility treatments. Without unambiguous definitions of personhood, the legality of common IVF procedures—including embryo freezing, storage, donation, and disposal—remains unclear. Some states with unclear restrictions have explicitly protected individuals attempting to dispose of frozen embryos, but their efforts result in piecemeal laws that create only pockets of certainty—as opposed to comprehensive protection for all parties involved. Until legislatures codify unambiguous rights for patients and clinics to ethically provide reproductive care, the industry’s future will remain at best perilously unstable and at worst outright illegal by technicality.

On January 18, 2024, the first real step toward enshrining access to vital procedures in the fertility industry on a national level was taken. Democratic Senators Tammy Duckworth of Illinois, Patty Murray of Washington, and Representative Susan Wild of Pennsylvania introduced the Access to Family Building Act to the House of Representatives. Following the Right to Build Families Act of 2022, this legislation aims to affirm the right to ART, permit the disposal of genetic material, and protect healthcare providers involved in fertility treatments. 

The introduction of the Access to Family Building Act marked a potential inflection point in preserving reproductive rights post-Roe. Amidst mounting abortion restrictions, advocates argued the act could become a bulwark for individuals’ paths to parenthood. However, the act was blocked by Republican senator Cindy Hyde-Smith from Mississippi on February 28, 2024. Evidently, it is clear that Republicans will continue to alienate voters in an out-of-touch attempt to bolster their campaigns.

While abortion opponents believe banning procedures protects life, poorly crafted policies threaten lives waiting to begin. To prevent this collateral damage, state legislatures must enact laws unambiguously upholding reproductive rights—including fertility care. Defining embryos as legal property, not persons, preserves access to ethical IVF. Shielding doctors from liability for standard treatment enables clinics to operate freely. Rules allowing the transport of cryopreserved embryos across state lines enable accessibility for families in restrictive states. Requirements to cover IVF under insurance plans ensure affordable access. Thoughtful regulation can balance ethical concerns while protecting reproductive liberty––the problem appears to be in getting regulators to think in the first place. 

Without intervention, the unclear legal status of embryos and fertility treatments could grant lawmakers increasing power to restrict access to vital reproductive medicine in other ways,  from banning genetic testing to prohibiting IVF altogether. Clinics will close if skilled staff opt to work in states with more protective regulations. Inequality will worsen, with only the wealthy able to retain access to care. And worst of all, budding families that are relying on IVF will no longer be able to grow. But this future is only inevitable to the degree that citizens accept it.

As conservative states move to curtail reproductive rights following Roe’s demise, the Access to Family Building Act signals a divergence between state and federal policy trajectories until now. This bill aimed to uphold critical fertility services even as abortion opponents advance their agenda through state-level abortion bans. Perhaps most consequentially, the protection of IVF could serve as an unusual point of common ground for family-first conservatives and liberals interested in reproductive rights issues. At this crossroads, the future of family building will hinge in part on how far America will go to comprehensively defend reproductive healthcare and, in doing so, secure its future for generations to come.

Henry Michaelson (CC ’25) is a columnist at CPR and a philosophy major with a statistics concentration. He can frequently be found playing chess in the libraries instead of doing his homework.