Most individuals have heard the news that Alabama passed a law that effectively “bans” what is known as IVF. But what is IVF, why does the law essentially ban it, and what does that mean for you in Nevada?
IVF stands for “in vitro fertilization.” This is a medical treatment that is used predominantly for couples experiencing infertility. It involves collecting eggs from the ovaries of one person, and fertilizing them with the sperm of another. During this process, several eggs are fertilized at one time, creating embryos. One or more of the embryos are then implanted in the person’s uterus, while other embryos are typically stored by freezing.
Depending upon the couple, IVF would either use their respective eggs and sperm, one partner’s eggs and a third party’s sperm, or a third party’s eggs and one partner’s sperm. Often, an individual who undergoes IVF may become pregnant with multiples, like twins or triplets, due to the number of embryos that are implanted.
The first birth via IVF occurred not in a human, but in a rabbit. The first baby conceived via IVF in a human was born in 1978. Robert Edwards, who was the doctor who carried out the first successful human IVF birth, was awarded a Nobel Prize in 2010 for his contributions to medicine. It is estimated that more than eight million children worldwide have been born as a result of IVF.
Part of the typical procedure for IVF involves fertilizing several embryos to try to ensure that a healthy embryo is implanted that will give the most chance of leading to a successful, viable pregnancy. After implantation, the remaining embryos are typically frozen for potential future use. Sometimes, however, when the embryos are thawed to prepare for implantation, there is a possibility they could be destroyed. Sometimes embryos are damaged and unable to be used as well, or if there is a genetic mutation in an embryo, sometimes it is discarded.
IVF has been controversial. In the early 1970’s, some individuals criticized IVF as unethical, due to the separation of childbirth from traditional means as well as the possibility of birth defects. In the late 1970’s, an organization called the Ethics Advisory Board (“EAB”) was created to review proposals seeking federal funds to research IVF. In 1980, however, the EAB was disbanded, which caused significant delays in research in the United States.
By the 1980’s the debate focused on whether it was morally acceptable to “create life” in a petri dish. A decade later, individuals argued about possible embryo manipulation due to advances in DNA testing.
In the absence of an ethical board, the American College of Obstetricians and Gynecologists and the American Fertility Society stepped in to develop ethical standards for research. In 1985, congress created the Biomedical Ethics Board, which looked into all human subjects involved in federally-funded biomedical research, which also encompassed IVF, The board, however, basically ceased to exist by 1989 due to a disagreement among its members on abortion. Research on IVF continued nonetheless and major advances have been made in the field since that time.
Why are you hearing about IVF so much in the news recently? In 2020, an unauthorized person destroyed frozen embryos at an IVF clinic in Alabama, and the parties to whom the embryos belonged sued. In February 2024, the Alabama Supreme Court issued a decision that the frozen embryos were “persons” under the law, and the case could move forward pursuant to a law enacted in 1872 that allows parents to sue civilly for the death of a child. The Court also cited a 2018 amendment to the Alabama state Constitution that mentions the “sanctity of unborn life.”
As a result of this ruling, IVF clinics operating in Alabama paused operations, due to the legal ramifications of embryos being considered people. There are several legal issues that arose with the decision, including whether embryos need to be frozen and preserved forever, since they presumably could not be discarded, and whether genetic testing should even continue if all embryos must be preserved anyway.
Legislators in Alabama, however, have been quick to try to pass laws to lessen the impact of this decision. Governor Kay Ivey recently signed a bill to protect IVF. While two clinics stated they would resume services, one expressed caution, as the legislation does not actually clarify whether embryos have the same rights as children; rather, it seeks to give immunity from civil and criminal prosecution to the doctors and clinics who provide IVF services.
The decision out of Alabama came as somewhat of a shock, particularly to the medical community. But what does it mean for women in Nevada? Is IVF in danger of being restricted here too?
In Nevada, even after the overturning of Roe v. Wade, abortion continues to be legal. In the 2023 session, the Nevada legislature passed a Senate Joint Resolution seeking to guarantee a right, under the Nevada Constitution, to several reproductive health measures, including IVF. The resolution has not yet become law. If the bill is passed, it will appear on the ballot in a future election. For now, however, there are no legal restrictions on IVF in Nevada and it is not anticipated that any will be enacted in the near future.
Curious about what happens to frozen embryos in the case of a divorce? Little legislation has been passed to address this. There is not yet Nevada statutory or case law on the subject, but the general trend among states is that the parent who does not want the embryos implanted generally prevails – i.e., the Courts will generally not force them to become a biological parents if they do not wish to do so.
To read more about the legal implications of the disposition of frozen embryos during a divorce, please read our prior blog on the subject here: https://pecoslawgroup.com/twenty-first-century-conundrum-happens-frozen-embryos-couple-separates/.
If you are going through a divorce or considering filing for divorce and need information about the disposition of frozen embryos, an experienced family law attorney can help you to determine the best course of action.