Democrats unveil legislation outlining plan for right to fertility treatments

A trio of Democratic lawmakers introduced a bill on Thursday that would protect access to assisted reproductive technologies such as in vitro fertilization (IVF), as organizations that support abortion access raise concerns that Republicans may go after such treatments going forward.

Democratic Sens. Tammy Duckworth (Ill.) and Patty Murray (Wash.) and Rep. Susan Wild (D-Pa.) introduced a bill named the "Right to Build Families Act of 2022," which would bar states from limiting a person's access to fertility treatments or a health care providers ability to provides such services.

“Republicans’ extreme abortion bans are forcing women to stay pregnant against their will and are, at the very same time, threatening Americans’ ability to build a family through services like IVF. It’s hard to comprehend, and it’s just plain wrong," Murray said in a statement.

Duckworth, who underwent IVF treatments to conceive her two children, agreed that the overturning of Roe v. Wade had sparked concerns among Americans about accessing reproductive technologies.

When abortion bans went into effect across multiple states earlier this year with the overturning of Roe, infertility patients and health care providers expressed concerns that treatments like IVF could be threatened.

Northern Kentucky University law professor Judith Daar told NPR earlier this year that state legislatures will have to determine how IVF is affected, possibility indirectly or inadvertently, by abortion laws.

"If the legislature does view the unborn human life at its earliest moments as something worthy of protection over other interests, including the interest of patients and forming their families, then laws could move forward that are restrictive to in vitro fertilization," Daar said.

IVF involves the collection of mature eggs that are then fertilized in a lab before being transferred to a uterus, frozen or discarded. As some states have enacted laws that use the term "unborn child" to refer to an embryo from the moment it is conceived, patients and providers worry that IVF services could fall under the scrutiny of hardline lawmakers.

Multiple embryos can be created in a successful IVF cycle and several can be transferred. Not all embryos are always transferred, however, and many end up abandoned or discarded, which may occur because the prospective parents have not responded to a clinics inquiries or because there are signs that the embryo has abnormalities not compatible with life.

The bill introduced on Thursday would not only protect access to assisted reproductive technologies, but would also give the Department of Justice the authority to take civil action against entities that are found to violate the law.

Some Republican state lawmakers have already discussed further regulation of IVF in the post-Roe era. ProPublica obtained recordings of a meeting between Tennessee GOP lawmakers and anti-abortion activists in which they raised the possibility of enacting regulations on contraception and IVF in a few years.

Tennessee Attorney General Jonathan Skrmetti (R) clarified that his state's abortion ban did not apply to embryos that have not been transferred to a uterus and the related disposal would not be treated as a criminal abortion.

Former Republican New Hampshire Senate candidate Don Bolduc had indicated he would move to stop the disposal of embryos in recordings obtained by Vanity Fair earlier this year, calling it "a disgusting practice." Bolduc ultimately lost to incumbent Democratic Sen. Maggie Hassan.

GOP leaders in Congress have not commented on the potential for heightened regulation of IVF and the disposal of embryos. Some Republicans have recently expressed their own personal support for the treatment.

Former Vice President Mike Pence voiced his support for protecting IVF in an interview last month, saying, "I fully support fertility treatments and I think they deserve the protection of the law," while appearing on CBS's "Face the Nation." Pence and his wife Karen Pence underwent multiple rounds of IVF treatments themselves.