Megan Robertson, Erin Sutton, and Delia Deschaine, attorneys in the Health Care & Life Sciences practice, co-authored an article in Healthcare Business Today, titled “Legal Landscape for Fertility Treatment in the U.S. in the Wake of Dobbs – Some Answers, More Open Questions. What Will 2023 Deliver?”

Following is an excerpt:

In the wake of the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, that removed any federal constitutional protections over abortion, several legal issues and questions have arisen among a spectrum of industries and sectors. One of those issues is the legal status of fertility treatments such as in vitro fertilization (“IVF”) or assisted reproductive technology services (together, “Fertility Services”), including the components of such Fertility Services (e.g., embryo disposal and the practice of selective reduction). As summarized below, the lawfulness of these activities and, therefore, the potential impact on providers and entities that pay for these services, including employers, depends in part on the application of state abortion laws. While some of those laws are clear in their scope and application, others are more vague and have never been enforced or interpreted by a court of law. And, while some states have clarified the status of these laws in the context of their application to certain components of fertility care, others have remained silent. 

For example, on October 20, 2022, the Tennessee Office of Attorney General issued an opinion on the applicability of the state Human Life Protection Act—the state’s law that prohibits abortion after fertilization with affirmative defenses only available to physicians who perform abortions in the case of a medical emergency—to the disposal of human embryos that have not been transferred to a woman’s uterus (the “Opinion”). According to the Opinion, the disposal of a human embryo that has not ever been transferred to a human body is not punishable as a criminal abortion under the Tennessee Human Life Protection Act. This Opinion confirms what was already somewhat clear by the plain reading of the abortion laws in Tennessee, which define pregnancy as a person having “a living unborn child within” the body. Tenn. Code Ann. § 39-15-213(a)(4) (emphasis added). So, at least in Tennessee, persons or entities that provide Fertility Services, including those that fund such services, have clarity that “[d]isposing of an embryo that was created outside a woman’s body and that has never been transferred to a woman’s body . . . does not qualify as an ‘abortion’.” Opinion at 1.  

Importantly, the Opinion left open the issue of applicability of the Tennessee Human Life Protection Act to other Fertility Services. For example, a person may have multiple embryos placed into their uterus at once as part of the IVF process, hoping that just one implants successfully. If, hypothetically, more than one embryo implants, it is not uncommon to recommend termination of all but one of the implanted embryos, known as selective reduction or selective termination, since multiple implanted embryos could risk the sustainability of any pregnancy to term and increase maternal health risks. There is an argument that an embryo that exists within a human body would meet Tennessee’s definition of “pregnant” and any action taken to intentionally terminate such an embryo would be considered an abortion. Tenn. Code Ann. § 39-15-213(a). However, it remains to be seen whether the Tennessee Attorney General will address the applicability of the Human Life Protection Act to these other common Fertility Services. Perhaps states will use the 2023 legislative session to pass laws that clarify where Fertility Services fall under that state’s abortion laws. Other states appear to have this issue on their legislative agendas for the 2023 term. For example, pre-filed legislation in South Carolina would, if enacted, among other things, explicitly prohibit selective reduction, unless it was necessary to preserve the viability of other embryos.

Jump to Page

Privacy Preference Center

When you visit any website, it may store or retrieve information on your browser, mostly in the form of cookies. This information might be about you, your preferences or your device and is mostly used to make the site work as you expect it to. The information does not usually directly identify you, but it can give you a more personalized web experience. Because we respect your right to privacy, you can choose not to allow some types of cookies. Click on the different category headings to find out more and change our default settings. However, blocking some types of cookies may impact your experience of the site and the services we are able to offer.

Strictly Necessary Cookies

These cookies are necessary for the website to function and cannot be switched off in our systems. They are usually only set in response to actions made by you which amount to a request for services, such as setting your privacy preferences, logging in or filling in forms. You can set your browser to block or alert you about these cookies, but some parts of the site will not then work. These cookies do not store any personally identifiable information.

Performance Cookies

These cookies allow us to count visits and traffic sources so we can measure and improve the performance of our site. They help us to know which pages are the most and least popular and see how visitors move around the site. All information these cookies collect is aggregated and therefore anonymous. If you do not allow these cookies we will not know when you have visited our site, and will not be able to monitor its performance.