Inception’s Legal Chief Weights in on Emerging Legislation on Embryo Rights, IVF Restrictions, PGT, and Excessive Reporting
As the 2024 state legislative sessions are now either in full swing or starting to wind down, it's hard not to notice an emerging trend that could shape the future of fertility healthcare: the pro-life movement’s new focus on IVF. This year, the pro-life movement has increasingly aligned with IVF-restriction proposals from think tanks like the Heritage Foundation. These proposals include conferring embryos personhood, numerical limitations on embryo creation, and preimplantation genetic testing (PGT) prohibitions, as well as hefty reporting requirements for clinics regarding embryo creation and disposition. Consequently, each of these could significantly impact patients' access to IVF or even make parts of the IVF process illegal. So far this year, bills like these have been proposed in Tennessee, Texas, Georgia and several other conservative leaning states. The following will present a high-level look at these proposed laws and will briefly explore their policy rationale.
Personhood Laws and Their Impact on IVF
The personhood movement aims to give embryos legal rights from the moment of fertilization. In this legislative session we saw permutations of personhood laws across a range of legislation types, from proposed constitutional amendments conferring full equal protection and due process rights for embryos (Tennessee), to criminal code amendments that would treat routine embryo discards as homicide (Indiana) among other versions. The laws are premised on the notion that life begins at fertilization and that any fertilized ovum has God-given rights. While no such legislation has passed this year, we anticipate that these bills will continue to be proposed in the future and will continue to be discussed in the pro-life movement literature. Of course, embryos defined as legal persons would disrupt IVF practices. The extent of disruption is hard to gauge as it would be specific to the law. For example, Louisiana has conferred legal personhood on blastocyst embryos since the 80s without eliminating the practice of ART in the state, so a personhood law would not necessarily be fatal to ART, but it could have unforeseen consequences depending on the nature of the law passed.
The Myth of Excess Embryos and IVF Success Rates
Next, there’s the issue of limiting the number of embryos that can be created during IVF. We saw this proposed this year in Tennessee and other states. Unfortunately, it appears that proposed legislation is based on a faulty belief that IVF practitioners are needlessly creating embryos in numbers that far exceed those necessary to achieve the patients’ family planning goals. These proposals fail to understand that creating multiple embryos is absolutely necessary. In all reproduction -- both natural conception and IVF-- there is a natural embryo attrition rate; many embryos arrest before the blastocyst stage, fail to implant, or spontaneously miscarry. Indeed, studies have shown that for patients over the age of 35 nearly 8 eggs need to be fertilized to result in a single live birth. So creating more than one embryo is crucial for achieving successful outcomes. Effectively countering this false narrative requires explaining both the basic cellular biology of reproduction as well as the fact that limiting embryo creation will result in drastically lower success rates (as seen in countries like Italy where the restrictions have been passed), increased costs due to the need for additional treatment cycles, and greater heart ache and effort for patients.
The Burden of Excessive Reporting Requirements
Following on the false narrative of excess embryo creation some legislators have set out to prove their belief by imposing hefty reporting requirements for fertility clinics regarding the number of embryos created and their ultimate disposition. This could create real challenges. While transparency is essential, excessive regulations can distract from the quality care clinics provide. The fertility healthcare sector is already heavily regulated, and piling on more restrictions could stifle innovation and make it harder for patients to access the care they need. For example, a reporting law proposed in Texas would create massively onerous reporting requirements that would stress already overworked embryologist and lab staff whose primary focus should be patient care.
Misunderstanding PGT and Its Role in Reproductive Health
In addition to embryo related restrictions and regulations, several states have proposed restrictions on PGT. PGT can play a vital role in identifying potential issues that could lead to miscarriage or genetic disorders, but unfortunately misunderstanding about its capabilities is leading to poor public policy recommendations. Some voices in the anti-IVF camp suggest this testing is primarily for “trait selection” and suggest that patients are creating excessive embryos so they can select the perfect one that matches their desired traits. Like countering the excess embryo myth, countering this premise requires education on the types and reasons for testing, which many legislators do not fully understand. Limiting or banning PGT could ultimately harm patients by raising the chances of failed pregnancies and complicating the decision-making process for parents-to-be. Therefore, legislator education and countering myths is key.
Advocating for Evidence-Based Fertility Policies
While it's clear that the proposed legislation coming from the pro-life movement reflects a misunderstanding of the IVF process and the realities of reproductive healthcare, there is hope. This year has seen far more pro-IVF legislation proposed than restrictive legislation. Indeed, there’s a strong chance that by the time this essay is published, both Georgia and Tennessee will have passed laws that protect the right to access IVF. The fight in the future will be to avoid incremental encroachments on access to IVF. Through our policy outreach efforts at the Fertility Providers Alliance and at Inception Fertility, we learned that non-partisan education can turn IVF skeptics into IVF supporters. So it’s crucial for everyone involved in the fertility healthcare community to advocate for informed and evidence-based policies that truly support patients and calmly and respectfully counter misconceptions that could limit their access to essential reproductive care.