Last week, U.S. Senate Democrats failed for the second time in four months to force a vote on the so-called “Right to IVF Act,” which would establish a “right” to fertility procedures for all individuals whether or not they have a medically diagnosable fertility condition. The bill would also provide taxpayer funding for fertility procedures, essentially allowing the fertility industry to self-regulate, and would largely ignore the root causes of infertility. Enough Senate Republicans joined a 51-44 vote to keep a filibuster in place blocking an attempt from Senate Majority Leader Chuck Schumer (D-NY) to advance the bill.

While all but one Democrat voted to move forward, the motion fell short of the 60 votes required to break the filibuster illustrating that in-vitro fertilization (IVF) is becoming a wedge issue that has politicians fighting for political wins rather than good policy. IVF has become a 2024 campaign issue after the Alabama Supreme Court in February 2024 ruled 7-2 that frozen embryos created through IVF are children under Alabama law. The Court decided that the parents of embryos destroyed at an IVF clinic as a result of cryogenic tampering could proceed with a wrongful death lawsuit. Shortly thereafter, the Alabama legislature fast-tracked a new law that provides both civil and criminal immunity “to any individual or entity” providing or receiving IVF services when the death of an embryo occurs, which eliminates any legal consequences for their deaths.

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Now, the proposed “Right to IVF Act,” as written, is more about building up the billion-dollar artificial reproductive industry than about IVF. The bill would treat women and children (embryos) as commodities and objects of manufacture without regard to their health or safety by allowing the fertility industry to continue to buy, sell, and destroy embryos, as well as continue its eugenic practices of embryo selection and commercial surrogacy. The bill would likely lead to experiments on embryos, including the creations of three-parent embryos, human-animal chimeras, and gene editing for “designer babies” – all of which could grow the number of people renting wombs to purchase babies, which may increase human trafficking.

Expanding Access to Artificial Reproductive Technology (ART)

The “Right to IVF Act” would expand any individual’s access to the full range of fertility services and treatments. The bill defines ART as including “other treatments or procedures in which reproductive genetic material…are handled,” and can include other “treatments, procedures, medications, laboratory testing, technologies and services relating to fertility as the Secretary of Health and Human Services determines appropriate.”

The vague language could make the following permissible nationwide:

• Commercial gestational surrogacy, where the surrogate mother has no biological link to the child she is carrying and where the couple or individual renting her womb may use sperm and/or an egg from a donor. This practice is currently illegal or restricted in many states.
• Allow single individuals, non-married couples, lesbian and gay couples, and individuals in polyamorous relationships access to technology that would allow them to ‘create’ a child genetically related to at least one of the individuals involved.
• Allow foreign nationals continued access to the largely unregulated surrogacy market in the United States, which many view as a “pathway to citizenship.” Currently, 40 percent of foreign nationals renting wombs in the U.S. are single men over the age of 42 from China.
• Permit the eugenic practice of selecting embryos to create “designer babies.”
• Permit the creation of three-parent embryos (developed with DNA from more than two persons).
• Permit experiments with emerging technology, such as the creation of single-parent embryos (developed from custom-made sperm and eggs from cells belonging to a single person), human animal chimeras (human-animal hybrids), and human cloning.

Financial Impact and Taxpayer Funding

The bill will likely lead to an increase in federal spending since it requires federal insurance programs, such as Medicare and Medicaid, to cover fertility treatments if the plan also “provides coverage for obstetrical services.”

The World Health Organization estimates that one in six people experience infertility. Assuming this is true, there may be up to 9.5 million women of child-bearing age in the U.S. who may be seeking fertility treatments. At the average cost of about $40,000 to conceive via IVF, the costs to the federal government could be more than a billion dollars for federally insured women alone not counting the men who rent a womb who would be eligible for coverage under the bill.

Self-Regulation of the For-Profit Fertility Industry

According to a study published in the Houston Journal of Health Law & Policy, the multi-billion-dollar fertility industry already operates like the “wild, wild west” because of a lack of regulation. The industry is currently self-regulated by organizations such as the American Society of Reproductive Medicine (ASRM) and the Society of Assisted Reproductive Technology, whose members are part of the fertility industry. These regulators currently permit genetic testing, the creation and destruction of surplus embryos, freezing embryos indefinitely, and more.

The bill reads, “The enforcement of State health and safety law regarding medical facilities or health care providers does not constitute a violation…[if] such regulations are in accordance with widely accepted and evidence-based medical standards of care for providing fertility treatment…”

The term “widely accepted and evidence-based medical standards of care” is defined in the bill as “any medical services, procedures, and practices that are in accordance with the guidelines of the American Society for Reproductive Medicine.” Essentially, the ASRM would get to decide what the standards of care are rather than giving the states any regulatory control over the industry. The bill would likely invalidate laws in at least 11 states that regulate procedures involving embryos and surrogacy.

Failure To Address the Root Causes of Infertility 

Infertility can often be a side effect of one or more underlying conditions. According to a 2022 study in the Oxford Academica Journal “Human Reproductive Open,” couples struggling to conceive have an average of four or more underlying infertility issues. Often, these issues can take years to diagnose leading people to try IVF. However, the majority of IVF cycles fail, which lead many women to have traumatic stillbirth or miscarriages.

The “Right to IVF Act” largely avoids addressing these root causes of infertility. While focusing almost exclusively on the invasive, expensive, and risky IVF procedure, studies show there are other “natural” and “restorative” reproductive medicine options that can help alleviate infertility issues and promote more wholistic health. Depending on the specific infertility condition, some of these treatments can have as high as a 66 to 90 percent success rate. The bill does not specifically promote any pathways to actually healing infertility.

Liberty Counsel Action Chairman Mat Staver said, “The ‘Right to IVF Act’ would treat women and the preborn like commodities. Children in and outside the womb should never be the subject of political games.”