By: Michaela Kretzner
Published on: May 3, 2023
Many anti-abortion advocates seek to codify fetal personhood — the idea that life begins at conception — in order to protect embryos. Such laws, among other reproductive restrictions and abortion bans, are likely to become more common in state legislatures since the Supreme Court overturned Roe v. Wade last year. However, fetal personhood bills put in vitro fertilization (“IVF”), a popular form of assisted reproductive technology, at risk. Although direct limitations on IVF are unlikely to be passe d, fetal personhood laws could create additional accessibility barriers and restrictions on fertility treatment for those seeking care.
IVF starts by extracting eggs, which are then externally fertilized, thereby creating embryos to be transferred into the patient’s uterus. Although the number of embryos transferred is typically limited to one or two, generating as many healthy embryos as possible after each egg retrieval is ideal in order to minimize the risk of having to go through multiple rounds of extraction, which is costly and physically difficult. Excess embryos may be frozen for later use by the patient, donated to another patient, used for research, or discarded. Patients often pay for storage of the excess frozen embryos until they are ready to use. However, if discarding unused embryos is banned by a fetal personhood law, the cost of IVF would increase due to a need for indefinite embryo storage.
Several states have fetal personhood laws already, although Louisiana’s is the only one that specifically addresses embryos created through IVF. The Louisiana statute, enacted in 1986, prohibits the intentional destruction of a viable embryo that results from IVF. The statute provides that an embryo is non-viable if, outside of cryopreservation, it fails to develop further over a period of thirty-six hours. This provision appears to protect clinics and patients from liability resulting from an embryo that does not progress to pregnancy and birth — an important consideration when fewer than a quarter of IVF cycles result in live birth.
There is no guarantee that new fetal personhood laws would include such clear language, which could result in civil or criminal liability for clinics and patients for embryos that fail to develop. Fetal personhood laws that neither address nor create an exception for embryos created through IVF may impact access to the treatment. In the criminal context, application of the fetal personhood law on IVF would be left to prosecutorial discretion. For both civil and criminal liability, clinics and doctors may be hesitant to continue providing IVF to avoid being a test case for a new law. This would reduce opportunities for those seeking fertility treatments in states with fetal personhood laws, adding the cost of travel to another state to the already significant expense of IVF.
The impact of fetal personhood laws on the availability of IVF treatment will likely exacerbate existing racial disparities in reproductive outcomes in the United States. Black women are twice as likely as white women to experience fertility problems, but only half as likely to receive fertility treatment. In addition to increasing the economic barriers to fertility treatment, criminalization of pregnancy outcomes may have a deterrent effect on seeking fertility treatment. Pregnancy and pregnancy outcomes are criminalized when the state seeks to penalize people for actions that are harmful, or seen as harmful, to their own pregnancies. Criminalization of pregnancy outcomes was already increasing before the federal right to abortion was overturned, with poor people and people of color disproportionately targeted for prosecution.
Now that many states have banned abortion, those experiencing miscarriages or suspected of having an abortion are under increased scrutiny. People of color and people of low-income are more likely to experience pregnancy loss, and pregnant people that conceived through IVF may be at a higher risk for certain complications that make the pregnancy non-viable. Both elements increase potential exposure to investigation and prosecution. Fetal personhood laws would likely make it harder for hopeful potential parents to access IVF due to increased cost, decreased availability, and potential legal concerns, and these consequences will have a disproportionate impact on people of color.
 Greer Donley & Jill Wieber Lens, Abortion, Pregnancy Loss, & Subjective Fetal Personhood, 75 Vand. L. Rev. 1649, 1690-91 (2022).
 Henry T. Greely, The Death of Roe and the Future of ex vivo Embryos, 9 J. L. & Biosciences, July-Dec. 2022, at 1, 9-10.
 Jan Hoffman, Infertility Patients and Doctors Fear Abortion Bans Could Restrict I.V.F., N.Y. Times (July 5, 2022), https://www.nytimes.com/2022/07/05/health/ivf-embryos-roe-dobbs.html.
 E.g., Fiorella Valdesolo, The Connection Between Fertility Treatments and the Overturning of Roe v. Wade, Vogue (Jan. 27, 2023), https://www.vogue.com/article/fertility-treatment-overturning-roe-v-wade.
 ART Success Rates, Ctrs. for Disease Control & Prevention (last accessed Mar. 17, 2023), https://www.cdc.gov/art/artdata/index.html.
 See Greely, supra note 2, at 8, 12 (stating that egg harvest is unpleasant and risky).
 Greely, supra note 2, at 12.
 See id.
 Alise Powell, Black Reproductive Autonomy is in Jeopardy, The Century Found. (Dec. 19, 2022), https://tcf.org/content/commentary/black-reproductive-autonomy-is-in-jeopardy/.
 Greer Gaddie, The Personhood Movement’s Effect on Assisted Reproductive Technology: Balancing Interests Under a Presumption of Embryonic Personhood, 96 Tex. L. Rev. 1293, 1295 (2018).
 La. Stat. Ann. §§ 9:121-33 (1986).
 § 9:129.
 ART Success Rates, supra note 5.
 See Jonathan F. Will et al., Personhood Seeking New Life with Republican Control, 93 Ind. L. J. 499, 507 (2018).
 When Fetuses Gain Personhood: Understanding the Impact on IVF, Contraception, Medical Treatment, Criminal Law, Child Support, and Beyond, Pregnancy Just. 25 (Aug. 17, 2022), https://www.pregnancyjusticeus.org/wp-content/uploads/2022/12/fetal-personhood-with-appendix-UPDATED-1.pdf.
 Jennifer Gerson, How Overturning Roe v. Wade Could Affect IVF, PBS (May 31, 2022, 2:39 P.M.), https://www.pbs.org/newshour/health/how-overturning-roe-v-wade-could-affect-ivf.
 Ctr. for Reprod. Rts., Infertility and IVF Access in the United States: A Human Rights-Based Policy Approach 5 (2020), https://reproductiverights.org/wp-content/uploads/2020/12/64785006_Infertility-and-IVF-Access-in-the-U.S.-Fact-Sheet_2.5.2020_Final.pdf (reporting the median IVF cost in the U.S. is $19,200 for a single cycle).
 Powell, supra note 9.
 Ctr. for Reprod. Rts., supra note 17, at 5.
 Opposition to Criminalization of Individuals During Pregnancy and the Postpartum Period, Am. Coll. Obstetricians & Gynocologists (Dec. 2020), https://www.acog.org/clinical-information/policy-and-position-statements/statements-of-policy/2020/opposition-criminalization-of-individuals-pregnancy-and-postpartum-period.
 Donley & Lens, supra note 1, at 1704 (noting that 75% of prosecutions of pregnant women are of women of color).
 Robert Baldwin III, Losing a Pregnancy Could Land You in Jail in Post-Roe America, NPR (July 3, 2022, 5:27 A.M), https://www.npr.org/2022/07/03/1109015302/abortion-prosecuting-pregnancy-loss; see also Donley & Lens, supra note 1, at 1707 (explaining that there is no way to medically distinguish a miscarriage from a self-managed abortion).
 Donley & Lens, supra note 1, at 1663 (reporting that Black women are 43% more likely than white women to experience a miscarriage and twice as likely to have a stillbirth).
 ASRM Ctr. for Pol’y & Leadership, State Abortion Trigger Laws 4 (2022), https://www.asrm.org/globalassets/asrm/asrm-content/news-and-publications/dobbs/cpl-report_impact-of-state-trigger-laws-on-reproductive-medicine_final.pdf.