Legal Landscape for Fertility Treatment in the U.S. in the Wake of Dobbs – Some Answers, More Open Questions. What Will 2023 Deliver?

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.