Lawmakers in some states say they want to protect IVF services. But how can they do that effectively?

By Morgan Watkins

Many people worry for the future of in-vitro fertilization after seeing a court ruling endanger access to the fertility treatment in Alabama.

Lawmakers in Missouri, Kentucky, Kansas and other states have introduced a variety of legislation meant to ensure IVF stays accessible in their communities.

They’ve proposed a few different ways to protect IVF, but there’s debate over how to effectively do that after the U.S. Supreme Court overturned Roe v. Wade and scrapped decades of legal precedent on abortion and reproductive health.

The Alabama Supreme Court decided in February that frozen embryos used in IVF have the same rights as children under state law and, as a result, patients can pursue a wrongful death lawsuit against IVF providers if their embryos are destroyed.

At least 11 states, including Kentucky, Kansas and Missouri have laws with “extremely broad” provisions defining fetal personhood, according to the nonprofit Pregnancy Justice. This can impact other civil and criminal state laws.

The Alabama ruling fueled broader concerns that offering IVF services could become too risky for clinics, and prompted lawmakers from both political parties to reevaluate their home states’ laws for possible threats to IVF.

In Kentucky, the state legislature hasn’t responded to the Alabama case by passing any bills that explicitly protect IVF. But it did enact a law in March that grants immunity from criminal liability to health care providers if they harm someone while providing a health service, unless gross negligence or intentional misconduct was involved.

Republican state Sen. Whitney Westerfield of Crofton, who sponsored a pro-IVF bill that stalled in the legislature this year, said the new law is broad enough to protect IVF providers.

But safeguarding IVF clinics from criminal liability doesn’t address the crux of the threat Alabama providers faced after their recent court ruling, according to a legal expert on assisted reproductive technology like IVF.

Side Effects Public Media spoke to Judy Daar, the dean of Northern Kentucky University’s law school, about the Kentucky law and other states’ attempts to ensure IVF stays accessible.

This interview has been edited for length and clarity.

Morgan Watkins: The Kentucky Legislature passed a law last month that gives health care providers immunity from criminal liability if they make a mistake on the job. A Republican state lawmaker says that’s broad enough to protect IVF providers. What’s your read on the new Kentucky law? Does it address the concerns about IVF access raised by the Alabama ruling?

Judy Daar: The bill in Kentucky does not directly address the kind of liability that arose from the Alabama Supreme Court decision.

The Kentucky bill addresses criminal liability. The Alabama case is about civil liability. It's a case based on a wrongful death statute, which is a tort. And torts are civil wrongs that are mediated between private individuals versus criminal conduct, which is between a government, a prosecutor and a citizen.

What doctors were really worried about in Alabama was that the reading from the Supreme Court would allow a patient to potentially receive punitive damages, high damages, for negligence related to the embryos.

Prior to that decision, all of the other attempts — and there have been prior attempts — for plaintiffs to seek these wrongful death types of liabilities from IVF clinics have been turned down by the courts, largely saying that the embryos shouldn't be construed as children or human beings under these tort laws.

Watkins: Since the new Kentucky law focuses on providing immunity from criminal liability, is there a benefit to doing that in terms of protecting IVF providers?

Daar: I don't profess to have an encyclopedic knowledge of this. But my impression is the number of prosecutions against IVF providers, in the context of care, is minimal.

There are some notorious cases over the course of the more than 40 years that we've enjoyed IVF, but it's a handful. So, I'm just not aware that this was a real problem and I'm not aware that it was a real concern for physicians, just based on prior practices. But at the same time, I understand that lawmakers wanted to do something to reassure infertility patients that we were going to try to protect access.

But how much it will really impact practices remains to be seen because I don't think it was a tremendous problem, either in the commonwealth or even really throughout the country.

Watkins: What’s the significance of the Alabama court ruling on IVF for other states?

Daar: The concern isn't so much that it has an actual impact, but rather that it'll have a cascade effect on judges who would be interpreting similar laws in other states. About a third of our states have a wrongful death act that's very similar to the Alabama law. And so it's quite possible that, in those states, judges could interpret it in the same way as the Alabama court did, deeming that the embryo could be considered a child and therefore subject to punitive damages for mishandling.

Watkins: What are you seeing other states do to protect IVF?

Daar: The main pivot point came in June of 2022 when the United States Supreme Court handed down Dobbs vs. Jackson Women's Health Organization overturning Roe v. Wade. Many of us in the assisted reproductive technology realm predicted that what the Alabama Court did was exactly what was possible, [because] there no longer is any constitutional protection for reproductive choice.

In the wake of Dobbs, a few states did take action to protect IVF. Some states enacted exceptions to their abortion statutes that say there's a carveout for IVF — that anything in the abortion statute would not be applied to IVF.

Other states like Ohio had, by direct democracy, enacted a constitutional amendment that protects reproductive rights and specifically includes access to fertility care. So there has been some movement to protect IVF through lawmaking over the last two years.

Side Effects Public Media is a health reporting collaboration based at WFYI in Indianapolis. We partner with NPR stations across the Midwest and surrounding areas — including KBIA and KCUR in Missouri, Iowa Public Radio, Ideastream in Ohio and WFPL in Kentucky.