Lawsuits against embryo disposal could hinder IVF

An anti-abortion group sued seven Utah fertility clinics last month, claiming that disposing of embryos as part of in vitro fertilization violates the state’s wrongful death law.

The Voice for the Voiceless ministry believes it has a good case, as Utah is one of four states – Alabama, Louisiana and Missouri are the others – that have both a “fetal personhood” law and a civil wrongful death law, which the group claims could also apply to frozen embryos.

Other states offer opportunity for similar lawsuits: Have at least 10 Either a fetal personhood law — which gives a fetus, embryo or fertilized egg the same rights as a person born — or a wrongful death law, which could include frozen embryos, according to Pregnancy Justice, a group that tracks the issue and advocates for the rights of pregnant women, including the right to abortion.

“There are a number of states that have laws like Utah’s that establish that a person exists at a certain point in time, and that is conception,” said Frank Mylar, the attorney representing Voice for the Voiceless. He also represents another plaintiff, an anonymous woman from Ogden, Utah, who claims in the lawsuit that she underwent an IVF procedure at one of the seven fertility clinics and was not informed that unused embryos would be discarded or about options to put her embryos up for adoption.

“Once that egg is fertilized, it actually becomes a human being with rights,” Mylar said in an interview. “So what we’re doing in this lawsuit would be entirely applicable in any state that has this as a law.”

The lawsuit highlights the divide between many in the anti-abortion movement. Followers of a conservative philosophy known as “pronatalism” believe it is vital for Americans to have more children. They want easier access to IVF and President Donald Trump campaigned on making IVF more affordable.

So far he has negotiated steeply Discounts on three IVF drugs and suggested It allows employers to offer separate health insurance for fertility services, including laboratory tests, medications, genetic testing and IVF.

However, the IVF process often involves discarding embryos, which poses a conundrum for people who support IVF but believe that life begins at fertilization and oppose abortion. For abortion opponents, these embryos are unborn children, so disposing of them is no different from an abortion.

The split on the political right gained attention in February 2024 when the Alabama Supreme Court, made up of nine Republicans, governed 8-1, that the state’s wrongful death law applied to embryos. This decision paved the way for couples to file lawsuits if their frozen embryos were destroyed. IVF in Alabama clinics has been temporarily halted. It also sparked a national uproar and prompted the Republican-led legislature in Alabama to do so intervene immediately to protect IVF providers from legal liability.

But court cases and legislative efforts in several states show the IVF debate is still ongoing.

In Indiana And OhioIn cases where former partners have disagreed about what should happen to their embryos after separation, courts have weighed in on whether frozen embryos are personal or property.

In KentuckyEarlier this month, a judge struck down language in the state’s abortion ban that defined that human life begins at conception, handing victory to a Jewish woman who argued that the ban violated her religious freedom by putting her at risk of criminal prosecution if she performed artificial insemination. The state has Appealed the case.

In Kansas, a bill This year would have made it illegal to destroy a fertilized embryo even though it died in committee. And Tennessee became the first state in the South last year enact a law explicit affirmation of the right to access IVF and contraception.

Kulsoom Ijaz, a senior policy advisor on pregnancy justice, predicted that IVF opponents will continue to utilize the language of fetal personhood to challenge the fertility procedure. Ijaz said when fetal personhood language appears in an area of ​​state law, “it inspires legislators to align their laws across the board with these bills for the equal protection of the unborn.”

Then, she said, “courts use those definitions to then formulate case law in other areas of law.”

Risa Cromer, an associate professor of anthropology at Purdue University who focuses on medicine and reproductive policy, described personality language as “a threat to much of the reproductive healthcare system that remains very popular, including IVF.”

“Personality does not specifically imply abortion care, ectopic pregnancy care, contraception or IVF. In judicial interpretation it absolutely proves to be a threat,” Cromer said.

Utah lawsuit

During IVF, eggs are removed from the woman and then fertilized with sperm in the laboratory. Any resulting embryos can then either be transferred to her uterus or frozen for future utilize. Unused embryos can also be adopted, but in gigantic numbers are discarded. And storing frozen embryos can be costly, costing hundreds to thousands of dollars per year.

Louisiana is the only state which prohibits the destruction of IVF embryos. But fertility clinics have circumvented the 1986 law by shipping unused embryos out of state for storage.

The lawsuit says Voice for the Voiceless is morally opposed to IVF. But it is also claimed that the clinics can carry out IVF without They discard embryos by only creating as many embryos as are implanted into their customers.

Mylar, the attorney, said the defendants could change their clinic policies to comply with the state’s wrongful death law “if they basically said, ‘Our intention is for you to have every one of these fertilized eggs, and we are not going to let them die, either voluntarily, negligently or intentionally.'”

Voice for the Voiceless President Kriss Martenson, named as the plaintiff, said in an interview that he did not believe IVF could be practiced without violating the law. He said the lawsuit is a strategic attempt to apply the language of fetal personhood to IVF and abortion at all stages. The lawsuit says the organization, which it describes as a nonprofit, has legal standing because of its anti-abortion efforts in Utah.

Martenson said he was inspired to file the lawsuit in Utah by the Alabama Supreme Court’s 2024 decision and the combination of Utah’s fetal personhood and wrongful death laws.

A victory in the lawsuit “could strengthen legal arguments that the state has a constitutional obligation to protect human life from the moment of fertilization,” Martenson said. “That’s what I’m showing in Utah, and I think that could have implications for other states.”

Discard embryos

Embryo disposal is common in IVF, as multiple embryos are created for each individual fertilization procedure to maximize the chances of success. However, usually only one or two are transferred into a patient’s uterus to prevent high-risk pregnancies with multiple fetuses. Some embryos are discarded due to chromosomal problems or genetic diseases discovered during genetic testing in the laboratory. The Utah lawsuit claims this is “comparable to eugenics.”

Stateline contacted all of the clinics named in the lawsuit, but one declined to comment and the others did not respond in time for publication. The defendants have not yet filed a written response to the lawsuit. The seven clinics are: Conceptions Fertility Center, East Bay Fertility Center, Reproductive Care Center, Utah Center for Reproductive Medicine, Utah Fertility Center, Utah Fertility Specialists and Wellnest Fertility Clinic.

Susan Crockin, an associate professor at Georgetown University Law Center who teaches assisted reproductive technology law, said it is common practice to inform IVF patients of their options related to unused embryos. If the lawsuit is successful, it could significantly limit patient choices, Crockin said.

“The one thing that I think often gets lost in this debate is that a number of embryos are not used for reproduction … because they may have a genetic abnormality that is incompatible with life,” Crockin said. “So if every IVF embryo is considered a legally recognized person, I don’t understand what these anti-abortion and anti-IVF advocates would want us to do with these embryos sitting in cryopreservation tanks or not producing a viable human being.”

She added that it “seems very dangerous to confuse any attempt to create a family with the statement that every embryo in a freezer deserves to be placed in a womb that deserves it.”

Purdue University’s Cromer found that “the vast majority of religious Americans support access to IVF.” Cromer is a fellow at the Public Religion Research Institute, founded in a survey from 2024 that the majority of white evangelical Protestants, Hispanic Protestants, and Latter-day Saints both oppose laws that would make IVF illegal and strongly support laws declaring that human life begins at fertilization.

“While these types of lawsuits may be unique to certain jurisdictions, such as the state of Utah, they are completely contrary to what most Americans — religious Americans — want for themselves, their families and their neighbors,” Cromer said.

Stateline reporter Sofia Resnick can be reached at sresnick@stateline.org.