On January 18, 2024, Sen. Tammy Duckworth, D-Ill., and U.S. Congresswoman Susan Wild, D-Pa., introduced a bill called the Access to Family Building Act. The bill’s purpose is to permit health care providers to provide, and for patients to receive, additional certainty when it comes to medical benefits and assisted reproductive technology services. Those services include things like IVF, which is a critical family-building tool for parents throughout the United States. The bill is aimed at reducing requirements that are more burdensome than limitations or requirements imposed on medically comparable procedures, that do not significantly advance reproductive health or the safety of such services, or that unduly restrict access to such services.
Sounds great. But are assisted reproductive services even in danger currently?
The Threat
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A press release from Duckworth’s office explains the importance of fertility treatments to millions of Americans as well as to Duckworth personally — both her daughters were conceived with the help of IVF. But after the Supreme Court’s decision in Dobbs, which famously triggered renewed efforts by states to limit abortion, fertility treatments have also faced increased threats, whether intentionally or not, of being caught up in laws that restrict abortion.
While abortion is generally understood to be the termination of an established pregnancy, some legislation has used language like “fertilization,” and other broad terms that also implicate the use of in vitro fertilization. For example, a 2022 law out of Oklahoma defined an “unborn child” as a “human fetus or embryo in any stage of gestation from fertilization until birth.” The law was meant to target abortions in the state. But the statute’s definition of an unborn child, read literally, includes fertilized eggs — aka embryos — formed in the in vitro process outside the human body and then stored in a lab. Fortunately, in this particular Oklahoma law, other portions of the bill were sufficiently clear that people can agree that the bill is referring to a pregnancy in a human body. Even still, there is a movement by those looking to blur that line.
How Would The Access To Family Building Act Work?
Like the Respect for Marriage Act, which protected same-sex marriage in the wake of Justice Thomas’ solo concurrence in Dobbs, the Access to Family Building Act would respond to the collateral impacts of the Supreme Court’s reversal of Roe v. Wade and Planned Parenthood v. Casey. Essentially, if enacted, the bill would preempt state and local laws that either accidentally or intentionally restrict access to assisted reproductive technology. While there’s very little chance that a federal abortion bill would pass a divided Congress, the Access to Family Building Act, like the Marriage Protection Act, has a chance. But what does it actually say?
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Protecting Rights Of Individuals, Health Care Providers, And Insurers
The bill creates enforceable rights for the protection of individuals to access assisted reproductive technology treatments, health care providers to perform assisted reproductive technology services for patients, and insurers to provide coverage.
Individual rights. The bill lays out statutorily protected rights of the individual to access fertility care “including without prohibition or unreasonable limitation or interference (such as due to financial cost or detriment to the individual’s health, including mental health) to (A) access assisted reproductive technology; (B) continue or complete an ongoing assisted reproductive technology treatment or procedure pursuant to a written plan or agreement with a health care provider and (C) retain all rights regarding the use of disposition of reproductive genetic materials, including gametes” subject to health and safety restrictions.
That last part is particularly interesting in light of laws like this one in Louisiana that defines embryos as “juridical persons,” and provides that “a viable in vitro fertilized human ovum … shall not be intentionally destroyed by any natural or other juridical person or through the action of any other such person.” For IVF patients in Louisiana, this means that in-state destruction of an embryo is not an option. Patients who have completed their family or who are unable to move forward with using their own embryos are left with limited options — donate their embryos to others for conception purposes, store them indefinitely, or take the time and expense to physically move their embryos to another state. Duckworth’s bill, if enacted, would potentially preempt Louisiana state law.
Health care provider rights. The bill also states that a “health care provider has a statutory right to (A) perform or assist with the performance of assisted reproductive technology treatments or procedures and (B) provide or assist with the provision of evidence-based information related to assisted reproductive technology.” This is important — especially if unclear abortion laws are passed — to avoid health care providers fearing related civil or criminal penalties.
Insurance provider rights. Not to be left out, insurance providers are also promised the “statutory right under this Act to cover assisted reproductive technology treatments or procedures.”
Enforcement
Of course, no bill is complete without an effective enforcement mechanism. Here, the bill provides for multiple enforcement means. The attorney general of the United States “may commence a civil action […] against any state, local municipality, or against any government official, individual or entity that enacts, implements, or enforces a limitation or requirements that prohibits, unreasonably limits, or interferes with” the bill’s protected rights. Moreover, the bill provides a private right of action, allowing any individual or entity adversely affected by an alleged violation to commence a civil suit against any state or local government official that enacts, implements, or enforces limitations that violate the protected rights of the bill. Last, but not least, the bill provides that a health care provider has the right to commence an action for relief on its own behalf, on behalf of the provider’s staff, or on behalf of the provider’s patients who are or may be adversely affected by an alleged violation.
Previous Attempt — The Right To Build Families Act.
This isn’t Duckworth and Wild’s first attempt at passing IVF protections on a federal level. In 2022, the legislators introduced the Right to Build Families Act. And while, politically, the bill failed to progress at that time, Duckworth has noted that the new bill has incorporated feedback and improvements built on the foundation of the first bill.
Want To Support (Or Oppose) The Bill?
Share your thoughts with your senators and representatives. Reach out directly — email or call. Another option is to join Federal Advocacy Day, hosted by RESOLVE: the National Infertility Association (RESOLVE) and the American Society for Reproductive Medicine (ASRM), two proponents of the bill. This year’s Federal Advocacy Day is May 14, 2024. You sign up and show up, and RESOLVE and ASRM do all the work setting up meetings for you to speak directly with the offices of your U.S. senators and representatives. Even if you, yourself, aren’t facing the need for assisted reproductive technology treatments, chances are you know, and likely care about, someone who is.
Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at [email protected].