There’s hardly been time to watch the new season of “Bridgerton” with all of the IVF legal news pouring in. The IVF drama may be less steamy than the Netflix series, but—without offense to Lady Whistledown—more consequential.
Right To IVF Bill Stalled
June 13, 2024, was a significant day. Under the leadership of RESOLVE: the National Infertility Association (RESOLVE) and the American Society for Reproductive Medicine (ASRM), hundreds of advocates from across the country flew to Washington, D.C., to support the Right to IVF Act, which aims to establish a nationwide right for individuals to access assisted reproductive technology, such as IVF, without prohibition or unreasonable limitation. The bill also seeks to increase access to affordable fertility care through mandating inclusion of fertility benefits in group health plans, as well as plans covering military veterans and those insured through the country’s largest employer-sponsored health insurance program, the Federal Employees Health Benefits (FEHB) Program.
Despite the strong showing and over four-fifths of Americans being in support of IVF, the bill was blocked by Republicans. With 60 votes needed to move forward, the vote failed 48-47. Sens. Susan Collins (R-ME) and Lisa Murkowski (R-AL) broke ranks to support the bill, but more were needed.
Following this, Alabama’s Supreme Court ruled that embryos are people, a decision spurred by Alabama’s post-Dobbs amended constitution. This held that IVF providers could be liable for wrongful death in the case of destroyed embryos. In response to the ensuing panic, the Alabama legislature passed a sweeping shield law protecting IVF providers from liability.
Texas Supreme Court Declines Embryo Case
In good news, at least for now, on June 14, 2024, the Texas Supreme Court declined to hear an embryo dispute threatening a repeat of Alabama. In the Antoun case, a Texas couple underwent fertility treatments while their marriage was intact. They had cryopreserved embryos remaining at the time of their divorce.
As part of the IVF process, the couple signed clinic consent forms and selected that, in the event of divorce, husband Gaby Antoun would receive the embryos. The trial court and appellate court awarded the embryos in line with the parties’ agreement. Wife Caroline Antoun, however, argued that under the state’s latest abortion laws, the embryos should fall under the definition of an “unborn child.”
The Texas Supreme Court’s decision to not hear the case leaves the appellate court’s decision in favor of Gaby Antoun in place, preserving the current understanding under Texas law that IVF patients may make their own decisions concerning their genetic material and embryos, including the option of destruction.
Massachusetts Updated Parentage Bill Moves Forward
Massachusetts, surprisingly, remains the only state in New England not to have updated its parentage laws in recent years to account for families created through assisted reproductive technology. That may soon change. On June 12, the state’s House of Representatives unanimously passed H.4672, moving the legislation on to the state Senate for consideration.
The bill updates the state’s parentage laws and provides clarity on how parentage is established for children born through assisted reproduction, surrogacy, and for same-sex parents who aren’t married. Currently, the lack of clarity can lead to extended delays for individuals who expand their families through assisted reproductive technology. GLAD explained, “As the law stands now, children are not treated equally, with some having to wait six months or longer to establish their parent-child relationship. This is too long to wait, and leaves children and families vulnerable.”
With any luck, parents and children by assisted reproduction will soon receive equal support under Massachusetts law.
The development of ART laws is unlikely to slow down any time soon. For more information, visit Above the Law.