Last month, an anti-abortion group sued seven Utah fertility clinics, including the Utah Fertility Center, alleging that their removal of embryos as part of the in vitro fertilization process violates the state’s wrongful death law. (Photo by McKenzie Romero/Utah News Dispatch)
Last month, an anti-abortion group sued seven fertility clinics in Utah, arguing that removing embryos as part of the in vitro fertilization process violates the state’s wrongful death law.
Voice for the Voiceless Ministries says it has a sturdy case because Utah is one of four states — the others are Alabama, Louisiana and Missouri — that have both a “fetal personhood” law and a civil wrongful death law, which the group says could apply to frozen embryos.
Other states offer the possibility of similar lawsuits: At least 10 has either the Fetal Personhood Act — giving a fetus, embryo or fertilized egg the same rights as a born person — or the wrongful death statute, which could include embryo freezing, according to Pregnancy Justice, a group that tracks the issue and advocates for pregnant women’s rights, including the right to abortion.
“Many states, like Utah, have laws that state that a person exists at some point and that is conception,” said Frank Mylar, an attorney representing Voice for the Voiceless. He also represents another plaintiff, an unnamed woman from Ogden, Utah, who claims in her lawsuit that she underwent in vitro fertilization at one of seven fertility clinics and was not informed that unused embryos would be discarded or that she could be placed for adoption.
“When an egg is fertilized, it effectively becomes a human being with rights at that point,” Mylar said in an interview. “So in any state that has such a law, what we do in this process would be very applicable.”
The lawsuit illustrates the division among many in the anti-abortion movement. Proponents of a conservative philosophy known as “pronatalism” believe it is imperative for Americans to have more children. They want easier access to in vitro fertilization and President Donald Trump she ran a campaign on making in vitro fertilization more affordable.
So far, he’s negotiated steeply discounts on three IVF drugs and proposed allowing employers to provide separate health insurance coverage for fertility services, including laboratory tests, medications, genetic testing and in vitro fertilization.
However, the IVF process often involves discarding embryos, creating a conundrum for people who support IVF but believe that life begins at fertilization and oppose abortion. To anti-abortion purists, these embryos are unborn babies, so getting rid of them is no different than having an abortion.
The split on the right gained attention in February 2024 when the Alabama Supreme Court, which includes nine Republicans, ruled 8-1 that the state’s wrongful death statute applies to embryos. This decision allowed couples to pursue legal claims if their frozen embryos were destroyed. Temporarily halted in vitro fertilization at Alabama clinics. It also caused a national uproar and prompted the Republican-led Alabama Legislature to do so step in immediately to protect IVF providers from legal liability.
However, court cases and legislative efforts in many states show that the debate over in vitro fertilization continues.
IN Indiana AND Ohiocourts have considered whether frozen embryos are people or property in cases involving former partners who disagreed over what to do with their embryos after separation.
IN Kentuckya judge earlier this month struck down language in the state’s abortion ban that defined human life from conception, handing a victory to a Jewish woman who argued that the ban violated her religious freedom, putting her at risk of prosecution if she used in vitro fertilization. The state has he appealed thing.
in Kansas, proposed bill this year it would be illegal to destroy a fertilized embryo, even though it died in committee. And Tennessee last year became the first state in the South pass a law clearly affirming the right to access in vitro fertilization and birth control.
Kulsoom Ijaz, senior policy advisor at Pregnancy Justice, predicted that IVF opponents will continue to apply language referring to fetal personhood to question the fertility procedure. Ijaz said that when language referring to fetal personhood appears in one area of state law, “it inspires legislators to generally align their laws with statutes providing equal protection for unborn children.”
Then, she said, “courts use these definitions to then create case law in other areas of the law.”
Risa Cromer, an associate professor of anthropology at Purdue University who focuses on reproductive medicine and policy, described the language of personhood as “a threat to a wide range of reproductive health needs that remain very popular, and in vitro fertilization is one of them.”
“Personality does not clearly imply treatment in the case of an abortion, treatment of an ectopic pregnancy, contraception or in vitro fertilization. In judicial interpretation, it absolutely turns out to be a threat,” Cromer said.
Utah lawsuit
IVF involves removing a woman’s eggs from her body and then fertilizing them with sperm in a laboratory. The resulting embryos can then be transferred to the uterus or frozen for future apply. Unused embryos can also be adopted, but there are many of them are rejected. And storing frozen embryos can be exorbitant, ranging from hundreds to thousands of dollars a year.
The only state is Louisiana which prohibits the destruction of IVF embryos. However, infertility clinics circumvented the 1986 law by shipping unused embryos out of state for storage.
The lawsuit states that Voice for the Voiceless is morally opposed to in vitro fertilization. However, he also claims that clinics could perform in vitro fertilization without discarding embryos by creating only as many embryos as will be implanted into their clients.
Mylar’s attorney said the defendants could change their clinic’s policy to comply with the state’s wrongful death statute “if they basically said, ‘Our intention is for you to have all of these fertilized eggs, and we have no intention of letting them die voluntarily, negligently or intentionally.'”
A voice for the voiceless President Kriss Martenson, named as the plaintiff, said in an interview that he did not believe in vitro fertilization could be used without violating the law. He said the lawsuit represents a strategic effort to apply the language of fetal personhood to in vitro fertilization and abortion at all stages. The lawsuit says the organization, which it describes as a nonprofit, has legal standing because of its efforts opposing abortion in Utah.
Martenson said he was inspired to file the Utah lawsuit after a 2024 Alabama Supreme Court decision and Utah’s combination of fetal personhood and wrongful death laws.
A victory in the lawsuit “may strengthen the legal argument that the state has a constitutional obligation to protect human life from the moment of fertilization,” Martenson said. “That’s what I’m showing in Utah, and I think it could have an impact on other states.”
Throwing away embryos
Embryo disposal is common in IVF because multiple embryos are created with each individual fertilization to maximize the chances of success. However, usually only one or two are transferred into the patient’s uterus to prevent high-risk multiple pregnancies. Some embryos are rejected due to chromosomal problems or genetic diseases detected during genetic testing in the laboratory. The Utah lawsuit alleges it is “eugenics-like.”
Stateline contacted all of the clinics named in the lawsuit, but one declined to comment and the others did not respond in time for publication. The defendants have not yet submitted written responses to the lawsuit. The seven clinics are: Conceptions Fertility Center, East Bay Fertility Center, Reproductive Care Center, Utah Center for Reproductive Medicine, Utah Fertility Center, Utah Fertility Specialists and Wellnest Fertility Clinic.
Susan Crockin, an assistant professor at Georgetown University Law Center who teaches assisted reproductive technology law, said it is standard practice to inform in vitro fertilization patients about their options for using unused embryos. Crockin said if the lawsuit is successful, it could severely limit patient choice.
“The one thing that I think often gets lost in this debate is that a certain number of embryos are not used for procreation… because they potentially have a genetic anomaly that makes life impossible,” Crockin said. “So if every IVF embryo is considered a legally recognized person, I don’t understand what these abortion opponents and IVF supporters would want us to do with embryos that will be in cryopreservation tanks or will not become a viable human being.”
She added that “it seems very dangerous to conflate any attempt to start a family with the statement that ‘every embryo in the freezer deserves to be placed in a deserving womb’.”
Purdue University’s Cromer noted that “the vast majority of religious Americans support access to in vitro fertilization.” Cromer is a fellow at the Institute for the Study of Public Religion who discovered that: 2024 study that most white evangelical Protestants, Latino Protestants, and Latter-day Saints oppose laws that would make in vitro fertilization illegal and strongly support laws declaring that human life begins at fertilization.
“So these types of lawsuits, while they may create policy opportunities for individual jurisdictions like Utah, (are) completely inconsistent with what the majority of Americans — religious Americans — want for themselves, their families and their neighbors,” Cromer said.
Stateline reporter Sofia Resnick can be reached at: sresnick@stateline.org.
This story was originally produced by state linewhich is part of States Newsroom, a nonprofit news network that includes the Ohio Capital Journal and is supported by grants and a coalition of donors as a 501c(3) public charity.
