By Patience Sunne

A seemingly innocuous in vitro fertilization approach that has been embraced by conservative lawmakers in multiple states is to propose bills that clarify that the “right” to IVF is protected in state law. Unlike more sweeping bills, like the one in Nevada that explicitly states that IVF embryos will never be recognized as persons or unborn children under state law, bills proposed in Georgia and Tennessee are brief and do not contain explicitly anti-life language.

However, simply labeling IVF as a “right” carries implications that these legislators are likely unaware of. Here’s what pro-life, pro-family legislators (and their constituents) need to know about “right to IVF” bills.

1. If your state’s personhood law ‘threatens’ IVF, the problem is the industry, not the law.

State-level personhood laws have been an incredible win for the pro-life movement. They recognize that life begins at fertilization, and that rights begin when life begins. Last year, in a ruling that ought to have been celebrated by every pro-lifer, the Alabama Supreme Court ruled that the negligent deaths of IVF embryos fell under the state’s Wrongful Death of a Minor Act, because the state’s personhood law recognizes life begins at fertilization. The Alabama legislature quickly responded by passing a law that clarifies that embryos that die during the IVF process don’t count.

States that are following this example by creating carveouts for the IVF industry are making a terrible mistake. This classifies the right to life and personhood of one group of people (embryos created in glass) as inferior and irrelevant in order to protect an unregulated industry. Yes, embryos do die in the IVF process. If those deaths happen intentionally or because of negligence and malpractice, then the industry should be held accountable for loss of life. If they cannot operate under that standard, then it is the industry, not the law, that must change. Pro-life legislators in states with personhood laws need to have the courage to uphold everyone’s right to life from the moment of fertilization, even if the fertility industry objects.

2. A ‘right’ to IVF allows the redefinition of the family.

There was a time when conservatives were very concerned about children being raised in intentionally motherless or fatherless homes. If conservatives have any interest in preserving the natural family, then broadly defining assisted reproductive technology as a “right” is the last thing they should be doing. None of these “right to IVF” bills clarify who has a right to IVF. In the U.K., the number of single women undergoing IVF nearly quadrupled between 2012 and 2022. U.S. states like Illinois and California have expanded their definition of infertility to include the “inability to reproduce either as an individual or with a partner without medical intervention” thus expanding coverage for fertility treatments to single people and same-sex couples, whose inability to reproduce is not due to medical infertility, but the fact that they are not in a procreative relationship.

Last year in New York City, two men in a same-sex relationship are in a lawsuit alleging discrimination because their city insurance plan does not extend IVF coverage to male same-sex couples. In other words, despite the fact that neither of them has a womb, they believe they are entitled to IVF coverage with a third-party (a surrogate), because a female city employee could receive IVF coverage.

Conservatives who are concerned about the breakdown and redefinition of the natural family should not define IVF as a “right.” Doing so makes it difficult, if not impossible, to place prohibitions and limits on surrogacy and donor conception. Blue states have been moving toward radically redefining parentage to allow a parent-child relationship to be built on “intent” and parental rights to be bought and sold through third-party reproduction. These arrangements are made possible by in vitro fertilization, and declaring IVF to be a “right” threatens to further advance this redefinition of the family.

3. This legislation closes the door to future regulations.

I would be curious if many of these legislators have experience trying to regulate a “right.” The fact that many of them are in deeply pro-life states that were at the forefront of working to undo the so-called “right” to abortion imposed on states by Roe v. Wade tells me that they probably do. Having worked in the pro-life movement in a state where abortion has been declared a “right,” I know full well that regulating that right has been nearly impossible for pro-life legislators in the state. I’ve seen a bill simply requiring abortion facilities to pass a state inspection fail multiple times.

While the Alabama Supreme Court upheld the right of parents trying to have children through IVF, the state sided with the IVF industry against the interests of parents, not just unborn children. Here’s why this matters when it comes to in vitro fertilization. Many pro-life legislators believe they can have their cake and eat it too. They can maintain their states’ pro-life protections and declare IVF a “right.” That approach may prove to be deeply misguided when these states try to protect the lives created by the fertility industry, or for that matter, try to maintain basic protections for donor-conceived individuals or hold the line against surrogacy. Will a “right” to IVF prevent states from requiring clinics to use storage tanks that are actually approved by the FDA for that purpose?

Republican legislators who are embracing the “right” to IVF have no idea what is in the Pandora’s box they are opening. These bills seem innocuous, but in reality, they’re packed with implications that undermine the principles that many of these legislators claim to uphold.

Patience Sunne serves as the director of engagement at Them Before Us, a nonprofit dedicated to protecting children’s rights.