The Current State of IVF in the U.S.

By Published On: April 26th, 2024

Questions remain about the future of reproductive treatment after a ruling based on a 150-year-old law.

Since Roe v. Wade was overturned in June 2022, there has been a lot of anxiety and speculation about what rights will be stripped of next. Will they come after our birth control? LGBTQ+ rights? Interracial marriage? One thing we knew with certainty would eventually become negatively impacted by the Supreme Court of the United States (SCOTUS) egregious decision to leave the right to a safe abortion up to the states was in vitro fertilization (IVF), and nearly two years after SCOTUS ruling, we’ve already begun to see it unfold. 

To learn a little more about the current state of IVF in the United States, we spoke with Mark Trolice, MD, FACOG, FACS, FACE, founder of The IVF Center and the medical director of Everie, and Evie Jeang, a licensed attorney and surrogacy expert. 

The Infamous Alabama Case

The first thing to know is that there are currently no laws at the federal or state levels that directly attack a person’s right to IVF treatment, and SCOTUS’ overturning of Roe v. Wade was meant as an attack on abortion rights

“Until any law directly prohibits or curtails the process of IVF, patients deserve the treatment that is most effective to overcome their challenge in building a family,” explains Dr. Trolice.

Still, we are beginning to see the unintended consequences of anti-abortion laws and rulings affecting IVF. The most recent and widely known was in Alabama in February 2024. This case was brought by patients of a fertility clinic whose embryos were accidentally destroyed due to improper handling by a fertility clinic worker. An embryo is the inital stage of fetal development, when a sperm has fertilized an egg, but in the case of IVF patients, this process happens in a lab, and the embryo is later implanted into the birthing parent’s uterus when they are ready to become pregnant. (To learn more about the ins and outs of IVF, see our part one and part two explainers.)

The patients argued that this should be considered a “wrongful death of a minor” based on an existing Alabama law. Eventually, the case made its way to the state Supreme Court, where a justice ruled in the patients’ favor, declaring that, based on a law written in 1872, embryos created by IVF are considered children—even when they have not been implanted. 

The Ripple Effect

Someone going through IVF treatment is most likely doing it because they are struggling with infertility. In many cases, these patients may have experienced immense disappointment, pregnancy loss, and trauma simply trying to conceive. Understanding this, we can all sympathize with the patients in this lawsuit because they likely went through a lot of painful treatments to get those embryos (not to mention the financial costs they likely incurred), so losing them by no fault of their own must have been devastating. 

However, this ruling suddenly became a much bigger deal because Alabama has a total ban on abortions (with minimal exceptions). By considering unimplanted embryos children, any embryo discarded or destroyed for any reason—even with patient permission—would be the equivalent of an abortion. 

This is where it gets really complicated and messy because an unimplanted embryo is not a fetus, and it cannot be aborted, period. When a patient undergoes IVF treatment, a doctor will collect eggs from a patient’s ovaries and fertilize them with sperm in a lab, creating embryos. Those embryos are then transferred into a uterus, discarded, or frozen to be used later. Embryos that are not implanted are not pregnancies, nor are they viable outside of the uterus. An abortion is defined as the “termination of a pregnancy that is accompanied by, results in, or follows the death of the fetus.”

Still, because of this ruling, many fertility clinics in the state paused treatments as they sought legal counsel to ensure their staff’s and patients’ protection. However, since Alabama is not the only state with strict abortion laws, practices across the country became concerned that they may face a similar fate. 

“In response to the controversial embryo ruling in Alabama, some IVF clinics outside the state have also paused operations due to the ongoing effects of legal uncertainty and potential risks,” says Jeang. She further explains, “Concerns about the legal classification of embryos are now affecting various aspects of IVF operations, such as the creation, storage, and disposal of embryos.” 

Of course, this (understandable) act of self-protection by clinics puts patients in limbo; since the different stages of IVF treatment require such careful timing, even a short pause can have long-term consequences on someone hoping to conceive a child this way. 

This doesn’t sit well with Dr. Trolice. “Unless there is a definitive ruling that will impede the IVF process, e.g., freezing and thawing embryos, I believe it is premature to withhold much-needed treatment for infertility patients … Infertility is a disease that impacts 1 in 5 couples who are challenged to build a family. To further delay these couples in the journey for a child is unfair.” 

Ensuring Access to IVF Treatment

When asked what can be done to protect our right to IVF treatment, Jeang reminds us of the importance of staying informed. “If we continue to ignore laws that restrict these rights, reproductive freedoms risk regressing rather than advancing.”

Thankfully, clinics and practices that have paused operations since this Alabama ruling are in the minority. Even in Alabama, most practices are back up and operating after the Governor signed a new law that protects IVF patients and providers in the face of the February 2024 ruling. However, it’s unlikely that we won’t see more hurdles to access across the country in one way or another, given the continued attacks on reproductive rights since Roe was overturned. 

As an IVF patient, don’t be afraid to research or ask what your provider believes and how they are supporting IVF and reproductive rights. “All infertility specialists should support the American Society for Reproductive Medicine and RESOLVE—the National Infertility Association—in their unrelenting advocacy for a woman’s right to reproductive healthcare by meeting with legislatures, using social media, and contributing publications to increase awareness of this vital issue,” says Dr. Trolice. 

Even if you’re not an IVF patient, you can still help fight for our reproductive rights and access to essential healthcare, like IVF treatment. “Unity is so important when it comes to fighting against restrictive laws and protecting IVF and abortion regulations,” says Jeang. “Direct communication with legislators through phone calls, letters, and in-person meetings, as well as supporting political candidates who advocate for reproductive rights, is key.”