Senators Introduce Bill to Protect IVF as Abortion Bans Threaten Access

A group of Democratic politicians introduced new legislation on Dec. 15 to protect IVF and assistive reproductive technologies (ART).

Access to these technologies was called into question after the overturn of Roe v Wade — which established a pregnant person's freedom to choose to have an abortion. Now the authority to regulate abortion is in the hands of the states, many of which are already outright banning or firming up restrictions on the procedure.

With the decision to overturn, "A whole host of reproductive decisions are threatened by the overturn of Roe v. Wade, including the pursuit of IVF as a way to get pregnant," Noreen Farrell, executive director of Equal Rights Advocates, says.

The legislation — named the Right to Build Families Act of 2022 — was introduced by Senators Patty Murray, Tammy Duckworth, and Representative (D-IL) Susan Wild. Already, the legislation is endorsed by a slew of organizations, including the American College of Obstetricians and Gynecologists, Center for Reproductive Rights, and Resolve: The National Infertility Association, among others.

If passed, the act would accomplish four things, according to the U.S. Senate Committee on Health, Education, Labor and Pension:

"In this post-Roe era, we expect states to imminently introduce legislation that would restrict access to in vitro fertilization — a devastating development for those looking to build their families," said Barbara Collura, President and CEO of Resolve: The National Infertility Association, in a press release. "The Right to Build Families Act is life-changing for those who are trying to fulfill their dream of having a baby but are concerned that IVF will no longer be legal in their state."

Read on for more information on why IVF is in jeopardy and what you can do to protect reproductive rights.

"There are some very real reasons to be concerned about what comes next for IVF," Cathryn Oakley, director of state legislative affairs and senior counsel at the Human Rights Campaign, says.

To understand the consequences, it's important to first understand the process. During IVF, a sperm and an egg are fertilized outside of the human body in a lab to create an embryo. That fertilized embryo is implanted into a uterus in hopes that it will develop into a fetus. If we move forward with the logic used in the draft opinion (that life begins at conception and conception is the moment of fertilization), then "even before it's been implanted into a uterus, that embryo is given, basically, personhood, under that theory," Oakley explains. "That means that it has to be treated as a person and that it has legal rights."

This is problematic considering IVF generally involves fertilizing multiple eggs and then discarding (rather than implanting) those that are not viable or needed, Farrell says. "If you're considering an embryo a person, all of those things become extremely morally and ethically complicated," Oakley explains, and that can become legally complicated as well.

Scientists (and anyone who's had experience with IVF) know that just because a sperm and an egg have met and formed an embryo, it doesn't equate to that embryo becoming a person. In fact, failed implantation is quite common: for women under 35, the percentage of live births via IVF is 55.6 percent, according to the Society for Reproductive Technology. The overturn of Roe "could throw the procedure into legal jeopardy," Farrell says.

What does "legal jeopardy" mean? Well, we don't know exactly what actions politicians will take against IVF right now. But one thing is clear, though: by overturning Roe the doors have been opened for them to place a number of restrictive laws on the assisted-fertilization process. By extending the logic in the draft opinion, they could rule certain elements of IVF unethical or illegal. It may not happen immediately upon the overturning of Roe, but IVF could be the next reproductive right to be impacted by restrictive legislation.

Now that Roe v. Wade has been effectively overturned by the Dobbs decision, each state has the authority to restrict or ban abortion. As for what you can do about it, Oakley says to "fight back against those laws" in your state. Find out what the legal status of abortion will be in your state now that Roe v. Wade is overturned. (For context, 26 states are already certain or likely to ban abortion without Roe, per the Guttmacher Institute.) Once you find out where your state stands, immediately go lobby your lawmakers by meeting with them in person or by writing a letter or email, Oakley suggests. Let your elected officials know how these pieces of legislation will impact you.

It's also worth stressing to lawmakers that reproductive healthcare covers a range of procedures, including medically assisted miscarriages, which can be necessary in order for someone to complete a miscarriage and move on to their next intended pregnancy, Oakley says. "The actual implications of these laws for people who are trying to get pregnant are tremendous, [as they're] related to IVF and other fertility services as well," she points out.

It's also important that you vote in upcoming elections for candidates who align with your stance on abortion and other reproductive rights. Finally, you can show your support for the Right to Build Families Act by contacting your members of congress and urging them to support the legislation.

We don't yet know if or when the Roe v. Wade overturn will impact IVF and the Right to Build Families Act is still a long way off from being passed. But "unfortunately, this is one of those things people should be anxious about," Oakley says. "It should be scary for everyone who has a reproductive system, which is all of us."

You can turn that anxiety into action by lobbying your lawmakers, as suggested earlier, or by taking one of these actionable efforts today. And if you're feeling far too overwhelmed by the news and its implications, Farrell encourages people to "seek medical and mental health professionals to help with anxiety, and join a community that feels the same as you do on these issues for support."