IVF in the USA: A political dance

Since the US Supreme Court's 2022 decision to overturn Roe v Wade (see BioNews 1147), there have been worries about the future of IVF in the USA. Both abortion and IVF involve decisions about the disposition of 'potential life'.

Concerns about IVF were heightened in February after the Alabama Supreme Court permitted a wrongful death case to proceed for the destruction of in vitro embryos (see BioNews 1208 and 1228).

In response to the Alabama ruling, the Alabama legislature quickly took action to provide some protection to IVF (see BioNews 1229) – and so have various members of the US Congress. While each individual state can enact its own laws, Congressional legislation would apply to all states.

So far this year, Congress has considered at least three different pieces of legislation related to IVF. None of these efforts has passed (nor have efforts to guarantee a right to contraception).

The first bill, the Access to Family Building Act, introduced by Senator Tammy Duckworth, would have established a statutory right to assisted reproductive technologies and permitted health care providers to offer IVF without fear of criminal liability. The effort was ultimately blocked in late February by Mississippi Senator Cindy Hyde-Smith.

The second bill, the IVF Protection Act, was introduced by Republican Senators Katie Britt and Ted Cruz in May (see BioNews 1240). It would prevent states from receiving Medicaid funding if they implement a ban on IVF – the federal government spends about half a trillion dollars on Medicaid. However, under this bill, states that wanted to ban IVF could, in compliance with federal law, simply forgo Medicaid funding. This would not only deprive citizens of those states from access to IVF, but it would also deprive the beneficiaries of Medicaid – low-income adults, children, pregnant women, the elderly, and people with disabilities – from access to free or low-cost health insurance.

Although the IVF Protection Act urges states not to ban IVF and explicitly protects the creation of embryos, 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 fertilisation', which would allow states to regulate how embryos are destroyed, implanted, and disposed of. States could, for example, prohibit preimplantation genetic testing and embryo destruction, limit how many embryos are created, or require excess embryos to be put up for 'adoption'. Such restrictions could have a serious impact on the practice of assisted reproductive technologies.

Moreover, the bill does not address the difficulties many face in accessing the very expensive technology. Typically, IVF costs at least $20,000 or more per cycle in the USA, placing it out of reach for those without insurance or other assets. There are serious inequities in who uses fertility services; the majority of users are white and educated, while that same group makes up less than a third of individuals who obtain terminations. This bill was voted down on 12 June.

The third federal bill, the Right to IVF Act was introduced in June 2024 by Senators Tammy Duckworth, Patty Murray, and Cory Booker. It is the most comprehensive bill thus far. Not only would it create a right to undergo fertility treatment, but it also addresses access issues by requiring most private and public insurance plans to cover IVF. In addition, it protects the right to control what happens to one's reproductive genetic material, such as decisions about testing, storage, and ultimate disposition of the material. Notably, the legislators promoting this bill see IVF, contraception and abortion as important reproductive decisions and have therefore made efforts to protect access to all three.

While the Senate was considering the Right to IVF Act, the Southern Baptist Convention (SBC) – the largest and most politically powerful Protestant denomination in the USA, with almost 13 million members – took its own position on IVF. It voted 'to reaffirm the unconditional value and right to life of every human being, including those in an embryonic stage, and to only use reproductive technologies consistent with that affirmation, especially in the number of embryos generated in the IVF process.' The SBC resolution did not propose banning IVF outright. Instead, it only supports IVF that would not result in the destruction of excess embryos – that is, IVF that is likely to be more costly, and less effective and efficient.

One potential way around the concerns of the SBC would be to use gamete intrafallopian transfer (GIFT), which former Vice President Mike Pence said he used, rather than IVF. Because GIFT involves mixing the sperm and egg and then immediately transferring them into a fallopian tube, it may seem like a way around religious concerns. First, fertilisation occurs in the body instead of in a petri dish as with IVF. Second, it may avoid the creation of excess embryos and their potential destruction. But placement of the eggs and sperm in GIFT, unlike with IVF, requires a surgical procedure and anaesthesia, which is why most clinics prefer IVF. Moreover, with GIFT, it is impossible to determine the quality of the embryos that are created, or even whether fertilisation occurred.

One day after the SBC resolution, the Senate voted not to advance the comprehensive Right to IVF Act for further consideration.

The battles over fertility treatment are part of a complicated political dance around reproductive justice in the USA. Democrats rightly recognise that decisions concerning contraception, abortion, and IVF are all part of reproductive health, and that reproductive justice requires legislative efforts to protect access to all three. Republicans, in contrast, treat abortion as distinct from IVF. As a result, they are engaging in political contortions to appear 'pro-life' by opposing abortion, while making half-hearted legislative efforts to support IVF – without dealing with access to the technology or the disposition of excess embryos. They clearly recognise that there is strong public support for this technology. A recent poll showed that over 80 percent of Americans think IVF should be legal; another in December found that 83 percent of evangelical Christians support IVF.

The federal stalemate leaves states free to develop their own approaches to IVF. This may well lead to the same patchwork of access to reproductive health as we are currently witnessing with abortion in large swathes of the country and even greater inequities in access to reproductive health care.