By Katherine L. Kraschel
Last week, the Alabama Supreme Court called frozen embryos created via in vitro fertilization (IVF) “extrauterine children” and referred to the cryotanks where they are stored as “cryogenic nurser(ies).” The Court sided with couples who claim the accidental destruction of frozen embryos created through IVF and cryopreserved ought to be treated equally to the death of a child.
The case, LePage v. Center for Reproductive Medicine, involves plaintiffs seeking punitive damages from an Alabama fertility clinic for the “wrongful death” of their embryos that were destroyed when a patient in the hospital where they were stored removed them from the cryotank. While the lower Alabama Courts concluded that the cryopreserved embryos were not a person or child under the state’s law, the Alabama Supreme Court disagreed and held that the state’s Wrongful Death of a Minor Act “applies to all unborn children, regardless of their location,” and that the plaintiff’s wrongful death claims could proceed.
Thoughtful scholars have argued that existing state laws do not sufficiently redress mistakes and accidents that occur in the process of fertility care, pregnancy, and birth. However, the ends do not justify the means in this case; likening frozen embryos to children is not a legally sound mechanism to hold fertility clinics accountable for negligently storing embryos. It illustrates how sympathetic stories can be used to further the agendas of those who seek to equate embryos and fetuses to “people” under the law and undercut the critical role modern fertility care plays in (re)defining the bonds that create families, and particularly, many LGBTQ+ and single parent families.
Specifically, lawmaking in fertility care stands to fuel the movement to create fetal personhood rights and a federal abortion ban. It may also signify an inflection point in regulating assisted reproduction reminiscent of pre-Dobbs targeted restrictions on abortion provider (TRAP) laws that sought to limit abortion provision by imposing restrictions. TRAP laws’ new sibling – targeted restrictions on IVF Provision – or TRIP laws, as I call them, stand to rob patients of their ability to build their families by compelling physicians to provide less effective, more expensive care. TRIP laws will erect barriers and exacerbate long standing racial disparities in accessing fertility care, and they will disproportionately impact members of the LGBTQ+ community who wish to build families through fertility treatments. The Alabama decision is severe, but it should serve as a warning to state legislators with a new responsibility to safeguard reproductive health care without the floor of Roe’s protections – proceed with extreme care and regard for “unintended” consequences of regulating fertility care.
Personhood & Federal Abortion Ban
Since Dobbs v. Jackson Women’s Health overturned Roe v. Wade, many states have begun to enforce abortion bans. Some laws banning abortion include language that note “life begins at conception.” Yet, to date, no state’s abortion ban actually bans destroying an embryo at the point of conception; they instead refer back to “pregnancy” or “gestation” or “in utero” when they describe the prohibited act.
Most IVF cycles involve discarding embryos, so a ban on “abortion” that includes prohibiting destruction of embryos would have field-shifting impacts on fertility care provision. The political economies of fertility care and IVF’s popularity – including in conservative states – suggest that, to date, this legislative drafting in Alabama and elsewhere has been a careful attempt not to liken embryo destruction to abortion, despite proclamations that life begins when a sperm meets an egg.
While the Alabama Court’s holding doesn’t immediately create sweeping changes outside the context of the state’s civil claims for wrongful death, or change Alabama law to criminalize embryo destruction, the Court’s reasoning in LePage stands to move the needle on personhood. While the majority opinion explicitly decided the case by interpreting the state’s wrongful death statute and sidestepped Constitutional issues, it nonetheless opined that should the Alabama Supreme Court construe its wrongful death statute to include children but not frozen embryos, it could run afoul of the United States Constitution’s 14th Amendment Equal Protection Clause by “withholding legal protections from” the embryos “based on immutable features of their birth or ancestry.”
This move by the court builds on groundwork laid by the majority opinion in Dobbs to redefine the contours of Constitutional law. As described by Melissa Murray and Kate Shaw in the Harvard Law Review, by suggesting fetuses are a vulnerable group that law ought to protect, the Dobbs majority’s vision may not be realized until fetuses are recognized as legal persons, paving the way for a federal abortion ban. Anti-abortion groups like Americans United for Life are transparent that this is their goal. The Alabama Court invites taking the analysis a step even further to ascribe personhood to frozen embryos.
Repurposing the TRAP Playbook – The Alabama Court & TRIP Laws to Limit IVF
The LePage case may serve as a long awaited victory for those who transparently call for the end to any practice that involves discarding embryos or conceiving outside the confines of coital intercourse. However, as noted above, IVF is sufficiently popular that the prospect of total embryonic personhood may seem politically untenable. Perhaps more importantly, then, as more calls for legal interventions in fertility care arise, the Alabama case may be a cautionary tale for stakeholders with good intentions who want to vindicate particular wrongs or protect particular interests through law without regard for its broader consequences. While Alabama may seem like an extreme example, the (un)intended consequences of the case, which originally sought to redress mistakes made in providing fertility care, can inform the ongoing debate about the role of law in assisted reproduction.
The majority and concurring opinions in LePage map out a game plan for state legislatures to regulate fertility care severely in the name of limiting embryo destruction. Some examples noted in the case include limiting IVF procedures to making a single embryo at a time or banning cryopreservation of embryos altogether. Louisiana law makes an embryo a “juridical person” and bans intentional embryo destruction. Such restrictions replace position lawmakers, in the place of licensed health care providers and decades of clinical evidence, to set the standard of care in fertility treatments. The prospect of fertilizing a single egg at a time could turn a 1-month treatment plan into a year-long one before a viable embryo is produced and results in a viable pregnancy. Time is of the essence for many fertility care patients, since the ability to produce viable eggs diminishes with age. Limiting IVF in this way could strip patients of their chance to become pregnant, and if they can afford it, force them to undergo unnecessary medical treatments and procedures.
In addition, each round of IVF is expensive and time consuming. A single cycle of IVF costs an estimated $30,000. Following the hypothetical above, as the number of cycles required to become pregnant skyrockets from one or two to twelve, the price tag also goes up from $30,000 to $180,000 or $360,000. Fertility care is often excluded from insurance coverage. TRIP laws stand to make IVF even further out of reach for those who already face significant barriers to care.
If regulating reproductive care to insert legislators’ values in the place of doctors’ expertise sounds familiar, that’s because it reads like a page straight out of the anti-abortion playbook’s targeted restrictions on abortion providers or TRAP laws. The Alabama decision, as well as other indicators from anti-abortion advocates, suggest that this may well be the beginning of a new wave of TRIP laws. Since many fertility care patients are part of the LGBTQ+ community, TRIP laws stand to disproportionately impact care that is essential for many LGBTQ+ people to exercise their reproductive autonomy and build the families they envision.
The current patients who seek fertility care are largely white and wealthy, so TRIP laws implicate racial and social issues distinct from TRAP laws, which disproportionately burden women and particularly women of color. However, the demographic disparities in accessing fertility care do not map onto the prevalence of infertility in the population – BIPOC women are more likely to be diagnosed infertile, yet less likely to receive care. In order to address these disparities, some states have begun to consider expanding their Medicaid programs to cover fertility care. Given the United States’ sordid track record of creating barriers to reproductive autonomy for women of color, it isn’t surprising that states might make moves to build bigger barriers to care as more progressive states seek to bring them down.
Unlike TRAP laws that were generally purposefully designed as Trojan horses cloaked in patient-protective purposes to trap abortion providers in an unworkable regulatory environment, many advocates who call for regulation of fertility care and the interdependent provision of sperm and eggs do not aspire to shut down IVF clinics or sperm banks, jeopardize LGBTQ+ family formation, or perpetuate racial disparities. This makes “TRIP” laws apropos; advocates may get tripped-up and unintentionally further the agendas of social movements with whom they do not align. This is particularly dangerous if they myopically advocate to redress a particular issue without attending to the many other consequences that stem from imposing specific regulations on fertility care. As ongoing debates unfold regarding the role of the state in reproductive decision making without Roe as a limiting guidepost, these advocates will have to grapple with the inconvenient truth that their seemingly well-intended and sympathetic calls for legal intervention may fuel political agendas they oppose.
Fertility Fraud TRIP Bills
“Fertility fraud” bills are an illustrative example of TRIP laws. Most frequently, champions of fertility fraud legislation state that their goal is to stop physicians from using their own sperm to inseminate patients without their knowledge or consent. There have been a number of recent reports of physicians who abused their power and patients’ trust in this deplorable way in the 1980s. However, between evolving standards of practice in fertility care and the sale of sperm and eggs, and the deterrent of direct-to-consumer genetic testing making hiding such acts less feasible, this practice is highly unlikely to be prevalent today. We ought to pause before adopting broad legislation to address bad behaving outliers, particularly when other legal mechanisms exist to address such instances, like consumer protection laws and state medical licensing boards.
Nonetheless, suppose, arguendo, that new laws are needed to address the troubling episodes of physicians using their own sperm. A Utah law passed in 2021 provides a good model that avoids the pitfalls of many other TRIP laws. It specifically criminalizes health care providers for using their own genetic material without their patient’s knowledge or consent. However, most fertility fraud bills are much broader and implicate many other facets of IVF provision. A recently introduced federal fertility fraud bill is a prime example. The bill would make it a crime punishable by fine and/or up to 10 years imprisonment for anyone to “knowingly misrepresent[s] the nature or source of DNA used in assisted reproductive technology.” If enacted, this broad bill would criminalize physicians, donors, banks, and possibly patients/parents for industry standard practices and private parenting decisions.
The law applies to anyone participating in the assisted reproduction process, including intended parents, and would criminalize misattribution of parentage. For example, a couple who chooses to tell their child that their “father” is the parent who is raising them without disclosing that a sperm donor was used for their child’s conception could be held criminally liable for “knowingly misrepresenting the… source of the DNA.” This happens frequently in the context of both assisted reproduction and coital reproduction, and assisted reproduction should not be treated as exceptional. Whether one believes withholding such information is objectionable, this parenting decision should not be criminalized.
Second, the statute’s “misrepresentation” and “nature of” language is very broad and ill-defined. The law could be interpreted to attach criminal penalties to sperm bank staff noting subjective characteristics for which reasonable minds could disagree, for example, whether a sperm donor looks like a celebrity. It could also criminalize sperm or egg donors for making representations that they earned a degree at an academic institution when they didn’t complete their final semester. Here again, the second example may be morally objectionable behavior, but it happens frequently in the context of coital reproduction and is not criminalized. Reproduction through sperm and egg provision should not be treated so exceptionally to attach criminal liability, particularly given that lesbians and single women make up approximately 75% of the “consumers” in the market for sperm.
The federal fertility bill is but one example. States, including New York, are considering fertility fraud bills where proposed legislation is far broader than the federal law. Other TRIP laws involve eliminating “anonymous” sperm and egg donation, like one enacted in Colorado in 2022.
The Alabama case illustrates how the Dobbs decision has emboldened state courts to adopt an unrestrained conception of the state’s role in “protecting life” and, in so doing, has fueled the movement to create fetal personhood and ban abortion at the federal level.
The Alabama opinion encourages state legislatures to act with the same sweeping authority in the wake of the Dobbs decision by enacting embryo-protective laws that could upend the provision of reproductive health care. As more states grapple with their role in assisted reproduction, they must proceed with caution and resist the inclination to act upon sympathetic stories without taking a principled approach and accounting for the cost of potentially undermining reproductive autonomy and limiting a critical path to parenthood for LGBTQ+ people.
