The real issues IVF legislation should address

It is now time for the fertility industry to welcome regulations that will ensure protections for all.

As one of the few lawyers in America to have actually litigated in vitro fertilization, I can say with certainty that Congress’s approach to the issue of IVF is all wrong.

Eight years ago, I filed a lawsuit under Louisiana’s IVF law to save the lives of five-day-old Emma and Isabella, the embryonic children of actor and businessman Nick Loeb and his former fiancée, Hollywood A-lister and star of the TV show "Modern Family" Sofia Vergara.

The lawsuit was an uphill battle that still rages on to this day, and it paints a very clear picture just how murky the cryogenically frozen waters of IVF can be.

It can be hard to see an embryo as a human being, especially as in the case of Emma and Isabella who started as two eggs and sperm in a petri dish, and now exist in cryogenic embryonic suspension…developmentally still only five days old.

This isn’t exactly the way we learned in junior high health class that babies are made.

It’s why the Feb. 16 Alabama Supreme Court decision on LePage v. Mobile Infirmary Clinic set off a firestorm for politicians and pundits who raced to type up half-baked statements reacting to a court decision that many still don’t understand.

They’ve said that IVF is under attack. (It’s not.)

They’ve said that abortion rights are under attack. (They’re not.)

In short, the state Supreme Court simply vindicated three couples who had gone through so much physically, emotionally, and financially to build their families. To hold the IVF clinic accountable for the destruction of the couples’ frozen embryos, the court declared those embryos to be human beings with rights extending outside the womb, whose parents can seek justice under Alabama’s Wrongful Death of a Minor law. The verdict was clear: IVF clinics must do their jobs in protecting children’s lives.

This is actually a win for IVF, and for accountability!

Now, legislators in both the states and the U.S. Senate are introducing IVF bills to shield the industry from regulation and accountability. Unfortunately, none of them to date have addressed the real problems.

IVF policy should support parents and families by giving them verified data, informed consent, and legal recourse when things go terribly wrong. New policies should also regulate the fertility industry and protect the children whose lives are suspended — literally frozen in time.

First, we must make sure that prospective parents really know what they’re getting into.

With authentic reporting requirements within the fertility industry, clinics could offer parents true informed consent on a host of IVF variables: costs; embryo creation, transfer, and success rates; risks and complications; disposition of embryos in the event of parent separation or death; and parents’ legal rights if clinics intentionally or negligently destroy their embryos.

Second, we need to enact regulations that ensure the best chance of parenthood. This includes promoting less invasive, less expensive fertility treatments before turning to cost-prohibitive IVF.

We should follow the example of countries like Germany and of the American Society of Reproductive Medicine guidelines that call for limiting the number of embryos created to the number that will be transferred. This alone quells the exponential expansion of surplus embryos — currently somewhere between 400,000 and 1 million-plus in the U.S. alone — which will lower costs for the parents, reduce unnecessary risk of embryo destruction, and improve health outcomes for both mother and child.

This would bring an end to the Wild West of fertility medicine that is rife with stories from wrong embryos being implanted to doctored paperwork to cover up mistakes. One couple saw their embryos lost, had a stranger’s embryo transferred unbeknownst to them, and then aborted the stranger’s baby rather than face a custody battle at birth. In several cases, fertility doctors used the wrong sperm or even their own sperm to inseminate women. Then, there are multiple equipment failures, at different clinics, that have killed thousands of embryos.

These are violations in the fertility industry that legislation must address, but we must also do all we can to protect the children’s rights.

Preimplantation genetic testing is too often used for eugenic or “designer baby” purposes, such as picking the baby’s sex, mental traits, or even eye color. Many countries limit or ban the practice; we should, too.

Children also have a right to know their biological parents for their medical and emotional well-being. Colorado and some other countries prohibit anonymous egg and sperm donation for IVF; we should likewise act at the federal level to prohibit anonymity.

We must celebrate the beautiful, loving families created by the modern miracle of IVF by ending the failed regime of self-regulation by an industry plagued with mistakes.

Just like police departments nationwide welcomed bodycams for their own protection, it is now time for the fertility industry to welcome regulations that will ensure protections for all.

Catherine Glenn Foster, M.A., J.D., is a constitutional attorney and president and CEO of First Rights Global, a position she assumed after a six-year tenure leading Americans United for Life, the country’s oldest pro-life organization, and a legal career on the issues of life, liberty, and human rights.