The Intersection of IVF and Reproductive Justice Post-Dobbs

Four years ago, the Supreme Court issued its decision in Dobbs v. Jackson Women’s Health, focusing on overturning the constitutional right to an abortion, challenging nearly 50 years of precedent. This decision affects not just abortion but broader reproductive justice, notably in areas like in vitro fertilization (IVF), a process through which nearly 3% of babies are born annually. Public support for IVF remains strong. During his campaign, President Trump proposed requiring coverage for all IVF treatment costs. In May, he introduced rules to ease employer coverage of fertility care.

However, distinguishing IVF from abortion is complex as both involve choices about family creation and prenatal life. IVF typically involves creating excess embryos to enhance efficiency and reduce costs, with procedures costing between $15,000 to $20,000 per cycle. Prospective parents traditionally decide whether to discard, donate, or store these embryos. Currently, over 1 million frozen embryos exist in the U.S.

In states banning abortion to protect unborn children, producing excess embryos through IVF presents challenges. The Dobbs decision supports states preserving prenatal life at all stages, encouraging embryo-protective measures. Consequently, many states treat embryos in test tubes differently from those in utero.

If embryos are considered people, IVF could face bans or restrictions, affecting its success. Restrictions might include prohibiting embryo destruction, requiring all fertilized embryos to be transferred, or limiting fertilized eggs. For instance, Italy’s 2004 law allowed only three eggs to be fertilized, banned embryo freezing, and mandated immediate embryo transfer. This led to declined IVF success rates and increased multiples, posing risks to mothers and children.

Despite this post-Dobbs landscape, attempts persist to balance embryo protection with preserving IVF. The Trump administration’s document on “embryo adoption” features embryos as existing children needing families, even as it supports IVF. Meanwhile, the Texas Republican Party debates IVF bans to protect prenatal life. The Southern Baptist Convention advocates embryonic dignity, while the Alabama Supreme Court ruled cryopreserved embryos as persons in wrongful death claims, pausing IVF in the state until a law protected providers.

Despite these tensions, IVF is expected to remain protected in most states. Fertility patients are often older, married, non-Hispanic white or Asian, and wealthy, more likely to protect their interests through voting. This demographic being able to create life via IVF might enable continued embryo control. Nonetheless, permitting IVF while banning abortion increases social inequities. The most privileged can manage fertility treatment access, whereas the less privileged face hurdles in accessing IVF and abortion.

Most seeking abortions are low-income, in their 20s, women of color, and unmarried, struggling more with abortion bans than wealthier fertility patients. The steep cost of IVF adds to these barriers. The American Society for Reproductive Medicine recognizes both IVF and abortion as crucial reproductive healthcare. Pursuit of either supports reproductive justice, emphasizing rights to have or not have children, and raising children with dignity.

Post-Dobbs, states banning abortion have undermined these rights, especially for the disadvantaged. Despite a rise in abortion rates, states with abortion bans report increasing pregnancy-related mortality and infant mortality. The opportunity to form families through IVF shouldn’t be another post-Dobbs casualty. For those valuing reproductive justice and equality, banning neither abortion nor IVF is essential; they represent two sides of the reproductive coin.

Sonia Suter is a law professor at The George Washington University Law School and founding director of the Health Law Initiative.