IVF and Abortion: A Complex Reproductive Justice Issue

Four years prior, the Supreme Court issued a pivotal opinion in Dobbs v. Jackson Women’s Health, focusing on overturning the constitutional right to an abortion and reversing nearly five decades of precedent. The implications of this opinion extend beyond abortion, notably affecting in vitro fertilization (IVF), a process responsible for the birth of about 3% of babies annually. Despite the strong public support for IVF, it faces challenges due to its connection with reproductive justice issues.

During his campaign, President Trump emphasized the significance of IVF, pledging to mandate coverage for all associated costs. In May, he introduced a rule to facilitate employer coverage of fertility care. Yet, distinguishing IVF from abortion is complicated, as both involve decisions about family creation and prenatal life. The typical IVF process, costing $15,000-20,000 per cycle, often results in the production of excess embryos to boost efficiency and control expenses. Prospective parents traditionally decide the fate of unused embryos, which can involve discarding, donating, or storing them for future use. Currently, over 1 million embryos are estimated to be frozen in the U.S.

In states banning abortion to protect unborn children, the excess embryo production in IVF presents a dilemma. The Dobbs ruling empowered states to protect ‘prenatal life at all stages of development,’ leading them to adopt embryo-protective stances. Consequently, some states differentiate between embryos in vitro and in utero, leading to regulatory challenges. If embryos are recognized as people, IVF might face bans or restrictions, reducing its success. Possible restrictions include prohibiting embryo destruction, mandating the transfer of all fertilized embryos, or limiting the fertilization of eggs.

Italy’s 2004 law, allowing the fertilization of only three eggs and banning embryo freezing, led to reduced IVF success rates and increased multiple birth rates, bringing added risks and burdens for women. Despite these outcomes, efforts persist to balance embryo protection with maintaining access to IVF, a procedure with significant public support. The Trump administration’s document on ’embryo adoption’ labels embryos as ‘children in need of a family’ even while supporting IVF.

Conversely, the Texas Republican Party debates banning IVF to protect prenatal life. Two years ago, the Southern Baptist Convention urged members to adhere to infertility treatments respecting embryo dignity. An Alabama court ruling that frozen embryos qualify as persons for wrongful death actions halted IVF until a law was passed providing providers with immunity. Despite these complexities, IVF might remain accessible in most states. Fertility patients, often older, married, wealthier, and non-Hispanic white or Asian, are more likely to secure protection for IVF procedures.

However, permitting IVF while banning abortion exacerbates social inequities. Less privileged individuals, often low-income, unmarried women of color, lack the means to navigate abortion bans and access IVF due to its high costs. Both IVF and abortion are considered essential reproductive healthcare by the American Society for Reproductive Medicine. These procedures are integral to reproductive justice, which champions the right to choose to have children or not and to raise children with dignity. The states banning abortion post-Dobbs have undermined these rights, especially for disadvantaged groups. Even as abortion rates have increased since Dobbs, so have pregnancy-related and infant mortality rates in states with abortion bans.

The potential threat to IVF in a post-Dobbs era raises concerns for reproductive justice. Ensuring equity and justice requires protecting both IVF and abortion access, as they represent two facets of the same reproductive issue.

Sonia Suter is a law professor at The George Washington University Law School and the founding director of the Health Law Initiative.