Family Law

Congress Goes Big On IVF

We’ve seen IVF legislative efforts before. But never like this.

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Cute little baby boy, relaxing in bed after bath, smiling happilyOn the heels of the Alabama debacle — where the Alabama Supreme Court ruled that fertility clinics could be liable for the wrongful death of a minor child in the case of the destruction of a cryopreserved embryo — a lot has happened. Just weeks after the decision, Alabama rushed to enact emergency legislation giving blanket immunity to IVF providers. That seemed to solve one problem, for now at least. (Although it created other problems.)

But there are other threats to IVF. As I mentioned in a recent column, the Texas Supreme Court is about to weigh in on whether embryos count as people under its abortion statute, which was triggered into effect by Dobbs. So with all of this going on, it’s no wonder that federal legislators are concerned for the future of IVF in the country.

On June 3, 2024, Sens. Tammy Duckworth (D-Ill.), Cory Booker (D-N.J.), and Patty Murray (D-Wash.) introduced The Right to IVF Act, a legislative package aimed at establishing a nationwide right to access in vitro fertilization (IVF) treatment and to lower the cost to access IVF and fertility care. The package consists of four previously introduced bills. These include:

  • The Access to Family Building Act. The bill establishes a right for individuals, “without prohibition or unreasonable limitation or interference 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 or deposition of reproductive genetic material, including gametes (eggs and sperm).The bill also creates a right of health care providers 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. And, not to be left out, the bill also protects insurance providers, protecting a right for insurance providers to cover assisted reproductive technology procedures.
  • The Veteran Families Health Services Act. The bill provides for the furnishing of fertility treatment and counseling, including through the use of assisted reproductive technology, to a covered member of the armed forces or a spouse, partner, or gestational surrogate of such member. The eligibility for treatment and counseling would be without regard to the sex, gender identity, sexual orientation, or marital status of the covered member. And the treatment would include not more than three IVF cycles — up to three completed egg retrievals, and unlimited embryo transfers in accordance with the guidelines of the American Society for Reproductive Medicine. Covered armed forces members unable to provide their own reproductive genetic material would be permitted to receive donated reproductive genetic material (donated egg, sperm, or embryos).
  • The Access to Infertility Treatment and Care Act. The bill is aimed at increasing insurance coverage for infertility treatment. Specifically it requires that a group health plan or a health insurance issuer offering group or individual health insurance coverage to ensure that such plan covers (1) the treatment of infertility, including nonexperimental assisted reproductive technology procedures, if such plan or coverage provides for obstetrical services; and (2) standard fertility preservation services when a medically necessary treatment may directly or indirectly cause iatrogenic infertility (such as when cancer treatment renders a patient infertile)
  • The Family Building FEHB Fairness Act. The bill adds coverage of assisted reproductive treatments, including IVF, to the Federal Employees Health Benefits (FEHB) Program, the country’s largest employer-sponsored health insurance program. Over 8 million people in the U.S., including federal employees, retirees, and their families, have health care coverage through the FEHB.

And in welcome news, proposed IVF legislation isn’t just coming from Democrats.

The Cruz Bill/IVF Protection Act. Last month, on May 20, 2024, Sen. Ted Cruz, R-Texas, together with Sen. Katie Britt, R-Ala., introduced the IVF Protection Act. The bill would revise the Social Security Act and provide that a condition of receiving payments under the act — aka Medicaid support — includes that a state “shall not prohibit in vitro fertilization … services and (2) shall ensure that no unit of local government in the State prohibits such services.”

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This is a nice development! It’s good to see agreement on both sides of the aisle! (Especially coming from Cruz and Britt, who represent Texas and Alabama, respectively.) At least there seems to be agreement on the fundamental idea that Americans should have access to IVF.

Now Is The Moment

RESOLVE: the National Infertility Association (RESOLVE), the country’s largest nonprofit advocating for fertility care for Americans, has understandably seen a significant jump in citizen concern and involvement across the country. The organization runs an annual federal advocacy day, connecting constituents with their representatives to tell their stories and express how important fertility care legislation is. This year, registrants for the advocacy day jumped from about 600 in 2023 to over a thousand.

One RESOLVE board member — my fellow Colorado attorney, Judith Hoechst — explains, “In the wake of Dobbs, anti-abortion and fetal personhood legislation has — intentionally or not — threatened Americans’ access to basic fertility treatment. RESOLVE is in strong support of the Right to IVF Act to ensure that all Americans have access to this important medical treatment, regardless of their zip code, and to ensure that medical diagnosis and care should be accessible to all individuals with infertility as any other medical condition and appropriately covered by insurance.” Hoechst explains that fertility care, including treatment options, should be medically determined by medical experts, not by politicians or insurance companies.

With divided government in Washington and the difficulty of reaching political consensus on these issues, getting over the finish line on any legislation is never easy. But with bipartisan agreement on at least the idea of nationwide protections for IVF, the hope is that our congressional legislators can take yes for an answer, and enact a law that has the goal of protecting something that we agree is important. Maybe then we can avoid the next scare like the one that occurred in Alabama.

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Ellen TrachmanEllen 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].

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