Last week, Republicans in Congress introduced the IVF Protection Act. The claimed goal is to ensure that states do not ban the “pro-woman and pro-family” in vitro fertilization (IVF) procedure through which over 2 percent of all babies in the U.S. are born each year.
Their political efforts to pander to suburban voters are a fool’s errand and intellectually incoherent. Earlier this year, Republicans also introduced a Life at Conception Act, which has the potential to make IVF riskier, more expensive and less effective.
Even Republicans are not sure how to reconcile their positions on abortion “with how IVF is routinely practiced.”
Since Roe v. Wade was overturned two years ago, Republican legislatures in conservative states have pushed aggressive anti-abortion bans, even moving to criminalize possession of abortion pills. These efforts are in sharp contrast to their attempts to appear supportive of IVF, a procedure that only a small minority of Republicans believe should be illegal.
A prime example was Alabama’s immediate ban on abortion after Dobbs overruled Roe and an almost equally speedy bill to protect IVF after the Alabama Supreme Court ruled earlier this year that frozen embryos are people for purposes of wrongful death suits. After the court ruling, Republican politicians twisted their words into rhetorical pretzels trying to appear both “pro-life” and pro-IVF. Some states even explicitly exempt IVF from their abortion bans.
The attempts to treat IVF as utterly distinct from abortion fail to recognize that both abortion and IVF concern nascent life and that IVF often involves the destruction of embryos.
While abortion and fertility treatments like IVF might seem to be opposites — with abortion ending an unwelcome pregnancy and IVF creating a desired pregnancy — they both exist on the same continuum of reproductive health.
The World Health Organization defines reproductive health as “a state of complete physical, mental and social well-being … in all matters relating to the reproductive system and to its functions and processes” and that it requires “the capability to reproduce and the freedom to decide if, when and how often to do so.”
Moreover, abortion is a more common procedure than IVF; in 2021, the Centers for Disease Control and Prevention counted 625,978 abortions compared to only 238,126 patients who underwent IVF cycles.
One cannot truly care about reproductive health and treat IVF and abortion as distinct. But to hear Republican politicians speak about the two, one would think they are not at all related.
Furthermore, much of the Republican efforts to promote IVF are mere window dressing. The IVF Protection Act, for example, does little to ensure the availability of the procedure. At potentially $20,000 or more per cycle, IVF is expensive. Not surprisingly, fertility services are most likely to be used by those who are white and educated — that is, those most likely to vote. By contrast, those same voters account for less than a third of abortions.
A genuine effort to protect IVF would require insurance companies to cover it, as is true in almost a third of states. In fact, the Right to IVF Act introduced by Senate Democrats earlier this week would require most private and public insurance plans to cover fertility treatments.
Legislation that is truly supportive of IVF would also ensure that the future of excess embryos would be up to the individuals involved, not the state. Typically multiple embryos must be produced to ensure the birth of one healthy child; not all embryos will survive thawing, not all will have high reproductive potential and not all will successfully implant in the uterus or result in a live birth. One estimate is that at least three embryos are required to achieve a live birth.
But as feminist writer Jessica Valenti points out, the IVF Protection Act only protects the creation of embryos — i.e., “the practice whereby eggs are collected from ovaries and manually fertilized by sperm, for later placement inside of a uterus.” It does not guarantee the ability to determine what happens with excess embryos. Instead, the statute declares that “Nothing in the IVF Protection Act shall be construed to impede states from implementing health and safety standards regarding the practice of in vitro fertilization.”
Even the Alabama legislature’s rapid attempt to protect IVF only provided immunity for “any individual or entity when providing or receiving services related to in vitro fertilization.” It is not clear that individuals who destroy excess embryos would be liable for wrongful death based on the earlier Alabama Supreme Court ruling.
The effort to promote IVF while penalizing abortion should be a catch-22. As long as there is political pressure to protect one of these forms of family planning and not the other, reproductive choice is limited — especially for those with the least power.
Sonia Suter is a professor of law at The George Washington University Law School and founding director of the Health Law Initiative.
Naomi Cahn is a professor of law at the University of Virginia School of Law and co-author of “Fair Shake” (Simon & Schuster, 2024).