Keeping Up With IVF Legal Developments (Summer 2024 Edition)
Assisted Reproductive Technology legal developments are unlikely to slow down any time soon. And more drama is, no doubt, in store.
There’s hardly been time to watch the new season of “Bridgerton” with all of the IVF legal news pouring in. The IVF drama may be a little less steamy than the Netflix series, but — without offense to Lady Whistledown — more consequential.
Right To IVF Bill Stalled
June 13, 2024, was a big day. Under the leadership of RESOLVE: the National Infertility Association (RESOLVE) and the American Society for Reproductive Medicine (ASRM), hundreds of advocates from across the country flew to Washington, D.C., to support the Right to IVF Act, which aims to establish — at the federal level — a nationwide right for individuals to access assisted reproductive technology, such as IVF, without prohibition or unreasonable limitation or interference. The bill also seeks to increase access to affordable fertility care through mandating inclusion of fertility benefits in group health plans, as well as specifically for plans covering military veterans and those insured through the country’s largest employer-sponsored health insurance program, the Federal Employees Health Benefits (FEHB) Program.
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Despite the strong showing last week, as well as over four-fifths of Americans being in support of IVF, the bill was blocked by Republicans. With 60 votes needed to move forward, the vote failed 48-47. Two Rs — Sens. Susan Collins (R-ME) and Lisa Murkowksi (R-AL) — voted to move the bill forward, breaking rank with their party. But more were needed.
This bill follows, of course, on the heels of a decision by Alabama’s Supreme Court that embryos are people. That decision was spurred by Alabama’s post-Dobb’s amended constitution and held that IVF providers could be liable for wrongful death in the case of destroyed embryos. In the ensuing panic after the Alabama ruling, fertility clinics in the state briefly shut down. That is, until 19 days later, when the Alabama legislature passed a sweeping and potentially overbroad shield law protecting IVF providers from liability.
Texas Supreme Court Declines Embryo Case
In good news, at least for now, on June 14, 2024, the Texas Supreme Court declined to hear an embryo dispute threatening a repeat of Alabama. In the Antoun case, a Texas couple underwent fertility treatments while their marriage was intact. They had cryopreserved embryos remaining at the time of their divorce.
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As part of the IVF process, the couple signed clinic consent forms and selected that, in the event of divorce, husband Gaby Antoun would receive the embryos. The trial court and appellate court awarded the embryos in line with the parties’ agreement. Wife Caroline Antoun, however, argued that under the state’s latest abortion laws, the embryos should fall under the definition of an “unborn child.”
The decision by Texas’s highest court to not hear the case leaves in place the appellate court’s decision in favor of Gaby Antoun and the agreement between the parties. It also preserves the current understanding under Texas law that IVF patients may make their own decisions concerning their genetic material and embryos, including the option of destruction.
Massachusetts Updated Parentage Bill Moves Forward
Massachusetts, surprisingly, remains the only state in New England not to have updated its parentage laws in recent years to take into account families through assisted reproductive technology. That may soon be remedied. On June 12, the state’s House of Representatives unanimously passed H.4672, moving the legislation on to the state Senate for consideration.
The bill updates the state’s parentage laws and provides clarity on how parentage is established for children born through assisted reproduction, surrogacy, and for same-sex parents who aren’t married. Right now, the lack of clarity can lead to extended delays for individuals who expand their families through assisted reproductive technology. As explained by GLAD, “As the law stands now, children are not treated equally, with some having to wait six months or longer to establish their parent-child relationship. This is too long to wait, and leaves children and families vulnerable.” With any luck, parents and children by assisted reproduction will soon receive equal support under Massachusetts law.
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The ART law developments are unlikely to slow down any time soon. And more drama is, no doubt, in store. Let’s hope, in the end, that the 80%-plus of our country supporting continued access to IVF find a happy ending.
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 babies@abovethelaw.com.
