Legal Landscape for Fertility Treatment in the U.S. in the Wake of Dobbs – Some Answers, More Open Questions. What Will 2023 Deliver?

Updated on February 3, 2023

In the wake of the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, that removed any federal constitutional protections over abortion, several legal issues and questions have arisen among a spectrum of industries and sectors. One of those issues is the legal status of fertility treatments such as in vitro fertilization (“IVF”) or assisted reproductive technology services (together, “Fertility Services”), including the components of such Fertility Services (e.g., embryo disposal and the practice of selective reduction). As summarized below, the lawfulness of these activities and, therefore, the potential impact on providers and entities that pay for these services, including employers, depends in part on the application of state abortion laws. While some of those laws are clear in their scope and application, others are more vague and have never been enforced or interpreted by a court of law. And, while some states have clarified the status of these laws in the context of their application to certain components of fertility care, others have remained silent. 

For example, on October 20, 2022, the Tennessee Office of Attorney General issued an opinion on the applicability of the state Human Life Protection Act—the state’s law that prohibits abortion after fertilization with affirmative defenses only available to physicians who perform abortions in the case of a medical emergency—to the disposal of human embryos that have not been transferred to a woman’s uterus (the “Opinion”). According to the Opinion, the disposal of a human embryo that has not ever been transferred to a human body is not punishable as a criminal abortion under the Tennessee Human Life Protection Act. This Opinion confirms what was already somewhat clear by the plain reading of the abortion laws in Tennessee, which define pregnancy as a person having “a living unborn child within” the body. Tenn. Code Ann. § 39-15-213(a)(4) (emphasis added). So, at least in Tennessee, persons or entities that provide Fertility Services, including those that fund such services, have clarity that “[d]isposing of an embryo that was created outside a woman’s body and that has never been transferred to a woman’s body . . . does not qualify as an ‘abortion’.” Opinion at 1.  

Importantly, the Opinion left open the issue of applicability of the Tennessee Human Life Protection Act to other Fertility Services. For example, a person may have multiple embryos placed into their uterus at once as part of the IVF process, hoping that just one implants successfully. If, hypothetically, more than one embryo implants, it is not uncommon to recommend termination of all but one of the implanted embryos, known as selective reduction or selective termination, since multiple implanted embryos could risk the sustainability of any pregnancy to term and increase maternal health risks. There is an argument that an embryo that exists within a human body would meet Tennessee’s definition of “pregnant” and any action taken to intentionally terminate such an embryo would be considered an abortion. Tenn. Code Ann. § 39-15-213(a). However, it remains to be seen whether the Tennessee Attorney General will address the applicability of the Human Life Protection Act to these other common Fertility Services. Perhaps states will use the 2023 legislative session to pass laws that clarify where Fertility Services fall under that state’s abortion laws. Other states appear to have this issue on their legislative agendas for the 2023 term. For example, pre-filed legislation in South Carolina would, if enacted, among other things, explicitly prohibit selective reduction, unless it was necessary to preserve the viability of other embryos.

Outside of the context of Tennessee’s abortion laws and the Dobbs Supreme Court decision, stakeholders must recognize that there are already existing state laws and regulations governing the disposition of embryos and fetal tissue. For instance, in Tennessee “[w]hen the demise of a fetus is the result of a surgical abortion”, there must be evidence of the pregnant person’s authorization for disposition of the fetus and the pregnant person’s informed consent for the surgical abortion, and the fetal remains must either be disposed of by cremation or internment. Tenn. Code Ann. §§ 39-15-219, 68-3-506. Under the Tennessee statute governing disposition of fetal remains, “unborn child” includes the “entire embryonic and fetal stages of the unborn child from fertilization to full gestation and childbirth,” though “surgical abortion” is undefined. Id. § 39-15-219. These laws were in effect prior to the Dobbs decision. As for post-Dobbs developments, on November 28, 2022, the 7th Circuit reversed a September 2022 decision that a 2016 Indiana law requiring providers to bury or cremate fetal remains, including those from abortions, was unconstitutional, saying that states “are entitled to have, express, and act on their own views about contestable subjects.” Doe et al. v. Rokita et al., 54 F.4th 518 (7th Cir. Nov. 28, 2022) (rehearing denied on December 28, 2022). The intersection of these pre-existing embryo and fetal disposition laws and the post-Dobbs abortion landscape adds a layer of complexity for Fertility Service providers, payers, and employers to consider.

In addition to the disposition laws, there is increasing focus on state “fetal personhood” laws, as the Dobbs decision did not opine on when personhood begins. Some states have laws specifying that personhood begins at conception, and one, Georgia, goes so far as to explicitly say that a fetus is a person. GA Code § 16-12-141 (“It shall be the policy of the State of Georgia to recognize unborn children as natural persons.”). In such states, there remain open questions as to how these personhood laws apply to Fertility Services including, for example, whether selective reduction would be considered murder or whether expiration of an embryo in cold-storage could constitute negligent homicide. In addition, taken to the logical extreme, the fetal personhood laws could have significant implications in a wide range of areas, including for example potential liability for the embryo, child support requirements, liability related to abuse of drugs during a pregnancy, and others. See, e.g., David Schultz, Fetal Personhood Promises to Be Next Major Fight in Abortion War, Bloomberg Law (Jan. 9, 2023). At the very least, states that take the step of assigning personhood status to fertilized embryos will have to consider what legal rights and obligations to assign to such persons.

Over the next few months, as federal and state legislatures convene, there likely will be more developments on the application of state abortion laws to Fertility Services. Notably, on the federal front, on December 15, 2022 Senators Tammy Duckworth and Patty Murray and Representative Susan Wild introduced legislation to protect the right to IVF and other Fertility Services. 

State legislatures may address the legal status of Fertility Services and other related activities as well, such as research involving fetal tissue or embryos. There may also be statements or opinions issued by state officials regarding the application of those laws, similar to the Tennessee Opinion.  

EBG’s interdisciplinary task force is actively monitoring changes to reproductive healthcare laws across all U.S. states and territories. To the extent you would like additional information about the Opinion or other issues related to the provision or funding of Fertility Services, please contact the authors of this blog or the EBG attorney with whom you usually work.

Megan RobertsonErin SuttonDelia Deschaine are attorneys at Epstein Becker Green.

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