IVF Patients and Physicians Confront Legal Minefield of Fetal Personhood Laws

In the summer of 2022, Allison Mertzman and her wife, Leanne, made a heart-wrenching decision: they asked their fertility clinic to destroy their embryos. The married couple, living in California but storing their nine embryos for $3,000 per year at a clinic in Michigan, faced an impossible choice after the legal landscape of reproductive medicine shifted dramatically.

After having two daughters through in vitro fertilization, the couple had planned to expand their family. However, Mertzman was diagnosed with breast cancer in 2021, and the women were waiting for a better time for implantation. Then, in June 2022, the U.S. Supreme Court’s Dobbs decision overturning the constitutional right to abortion triggered laws in several states establishing fetal personhood, or legal rights for embryos beginning at fertilization.

The Chilling Effect of Legal Uncertainty

The couple wondered: If their frozen embryos were damaged while being moved across states with personhood laws, perhaps because of failed temperature controls, what would the legal ramifications be? For the then-37-year-old Mertzman and her wife, state abortion and fetal personhood laws had a chilling effect. Consequently, they chose not to take the risk.

“I was strong-armed into destroying my embryos,” Mertzman said. “I wasn’t ready to implant them for multiple reasons, but overturning Roe v. Wade was the tipping point.”

The laws aren’t just triggering confusion and anguish among IVF patients like Mertzman; they’ve also left clinicians who are tasked with making, storing, testing, and discarding embryos afraid they could face liability. Fertility doctors worry that the new abortion laws will criminalize standard fertility care and expose them to felony charges or wrongful death lawsuits that are not covered by medical malpractice insurance policies.

Legal Landscape Reshapes Fertility Medicine

Doctors who provide or assist with illegal abortions in states that have bans, such as Texas and Alabama, already face civil penalties of $100,000 or more, revocation of their medical licenses, or prison, including a potential life sentence. Furthermore, thirteen states have total or near-total abortion bans.

At least 24 states have put some form of fetal personhood language directly into their abortion restrictions or broader civil or criminal statutes. Alabama, Georgia, Louisiana, and Missouri have some of the most sweeping fetal personhood laws related to pregnancy and embryos. In Louisiana, IVF embryos cannot be intentionally destroyed.

Federal Administration Embraces Alternative Approach

Meanwhile, on October 19, President Donald Trump signed an executive order directing the Department of Health and Human Services to create a Women’s Health Division at the National Institutes of Health within 90 days, with infertility featuring heavily on the agenda. The announcement highlighted an HHS infertility initiative and a proposed first-of-its-kind pathway for fertility benefits with the Departments of Labor and Treasury.

The initiative focuses on preventing infertility, identifying its underlying causes, pursuing non-IVF treatments, and researching male-factor infertility. Much of the administration’s health agenda, shaped by the Make America Healthy Again (MAHA) movement, mirrors the principles of restorative reproductive medicine (RRM), coined as a holistic approach to infertility care.

Restorative Reproductive Medicine Faces Scrutiny

Restorative reproductive medicine focuses on diagnosing and treating underlying health conditions instead of relying on assisted reproductive technologies like IVF. However, recent research indicates that there is insufficient evidence that RRM works. Additionally, leading medical organizations, such as the American College of Obstetricians and Gynecologists, have described it as a nonmedical, costly, and potentially detrimental approach.

These organizations warn that RRM can delay access to effective fertility treatments, especially when presented as a sole or primary option. Nevertheless, the state of Arkansas has been at the forefront of the national RRM movement, becoming the first state to write it into law in 2025 with its RESTORE Act.

Arkansas Law Raises Concerns Among Specialists

The law requires insurers to cover RRM and even extends to the state’s Medicaid expansion program, according to a state Medicaid official. In contrast, the law does not require providers to discuss or refer patients for IVF, and it protects clinicians who decline fertility treatment for religious or moral reasons.

Leaders in the fertility space in Arkansas are concerned about the effect of this law on their patients seeking infertility care. Christopher Moutos, a physician trained in reproductive endocrinology and infertility in private practice in Arkansas, worries about delays in evidence-based care if patients try RRM for two or three years before seeing a specialist.

“If you’re 39 when you start [RRM], and we see them at 42,” he said, “it’s a lot tougher [to conceive].”

Medical Tourism Emerges as Alternative

As domestic regulations tighten, some patients have turned to international options. Medical tourism patients who traveled abroad to access mitochondrial replacement therapy, a three-parent in vitro fertilization technique that’s illegal in the U.S., were misled by the for-profit industry, according to a recent investigation. This development underscores the desperation some patients feel when navigating increasingly restrictive fertility care options at home.

The Trump administration is also making moves to scale back pregnancy and reproductive health-related workplace accommodations as conservatives say existing regulations have protected abortion and fertility treatment. These policy shifts add another layer of complexity to an already challenging landscape for individuals seeking reproductive healthcare.

Implications for Future Fertility Care

The intersection of fetal personhood laws and fertility medicine creates unprecedented challenges for both patients and providers. Clinicians fear that standard procedures such as embryo testing, storage, and disposal could expose them to criminal liability. Patients like Mertzman face agonizing decisions about their reproductive futures, often forced to choose between legal uncertainty and their family planning goals.

As more states consider fetal personhood legislation and alternative reproductive medicine approaches gain political traction, the future of IVF and assisted reproductive technologies remains uncertain. The tension between expanding legal protections for embryos and maintaining access to established fertility treatments continues to reshape the landscape of reproductive medicine in America.