“It would be a sad commentary on the American ethos if federal funds could be used for the taking of human life, that is, therapeutic abortion, but not the creation of human life, that is, therapeutic conception.”
— Sid Leiman, Statement to the Ethics Advisory Board (1978).
“IVF destroys more embryonic life every year than Planned Parenthood. If you want to defend children’s right to life, you must recognize that when it comes to the destroying of embryos, the victimization of children, big fertility does that in numbers that far outpace abortion.”
— Katy Faust, North Carolina Family Policy Council (2024).
Introduction
In vitro fertilization (IVF) frees families from devastating disease and makes biological parenthood possible for those who can’t get pregnant on their own—that is, for those who can afford it.
Despite its high price tag, this medicine of miracles is responsible for more than one in fifty babies born in the United States, over 85,000 every year.
IVF goes mostly unregulated,
but it’s not the Wild West that headlines routinely portray it as.
The legal landscape of assisted reproduction is shaped by a host of federal, state, and professional measures.
But no authority meaningfully polices IVF providers when, for example, a patient’s eggs are fertilized with the wrong sperm, or one couple’s embryos are implanted into someone else.
Other developed countries take oversight far more seriously, dedicating national agencies to making assisted reproduction safe and effective.
Much lighter regulation in the United States makes it a global outlier.
Scholars have long assumed that America’s IVF exceptionalism is explained by political polarization around abortion.
For more than half a century, however, the governance of IVF in the United States has contrasted sharply with the nation’s sprawling abortion regulations. Since the first successful IVF birth in the late 1970s, IVF access has evaded sustained attention from either the pro-life or pro-choice movements, or the Republican or Democratic Parties.
Until very recently, that is: After 2023, IVF emerged for the first time as a rallying cry for reproductive rights and justice advocates, a lightning rod for leading anti-abortion groups, and the object of condemnation by the largest conservative Protestant denomination.
This dramatic shift might seem even more puzzling because IVF and abortion look very different to many Americans across the ideological spectrum. Some who are deeply committed to abortion rights as medically necessary, even lifesaving, deem IVF merely elective. Meanwhile, abortion opponents who view abortion as life-ending often see at least some forms of IVF as creating new life. If IVF and abortion are indeed different, how has IVF made its way to the front line of America’s culture wars? And how should this significant change inform the way we think and talk about post-Roe conflicts over assisted reproduction, both in legislatures and courts, and outside of them?
This Article answers these neglected questions.
It undertakes the first legal history of the relationship between abortion and IVF. This Article shows how their evolving relationship is the key to understanding (1) how for decades IVF remained deeply underregulated and rarely politicized, (2) why IVF has suddenly emerged as the locus of social-movement struggle in the aftermath of Roe’s reversal, and (3) what specific avenues are now possible to meaningfully regulate IVF—which is more popular than abortion—for the first time in American history.
This Article draws on extensive, original archival research from several sources: three privately held collections, four universities, two historical societies, and the Library of Congress. It traces how the abortion wars informed the laissez-faire fragility of IVF’s first half century as well as the modern collapse of that implicit settlement on how to govern assisted reproduction.
These insights from IVF’s neglected past also reveal hidden sources of potential common ground that point us toward a politically feasible future. Moving beyond partisan binaries and entrenched impasses over assisted reproduction requires acknowledging IVF’s moral and social complexities within the political and economic realities of American healthcare and family life. This Article proposes attending to several key regulatory pillars: legality, access, licensing of facilities and procedures, and transparency about competent and effective practice.
For a time, the regulatory vacuum accommodated competing interests on either side of the nation’s reproductive divide. Pro-life groups opposed IVF in principle, to the extent that it involved destroying embryos, but struggled to explain how a technique designed to make babies was not pro-life—and worried that making their opposition public would undermine the fight to reverse Roe.
Pro-choice groups grappled with the extent to which regulations to make IVF safe and effective would threaten access to not just IVF but also abortion—and struggled with whether IVF advanced reproductive equality or undermined it.
This Article shows how this fragile compromise collapsed in the aftermath of the Supreme Court’s decision reversing Roe.
Dobbs v. Jackson Women’s Health Organization did not directly bear on IVF cases or embryo legislation, neither of which generally rely on the federal Constitution. But the political impact of Dobbs on debates about IVF was huge. Determined to find a new mobilizing project, pro-life groups embraced the longstanding goal of fetal personhood: the idea that the meaning of person in the Fourteenth Amendment and other legal provisions applies the moment an egg is fertilized.
Activists have specifically taken aim at IVF, mounting a durable campaign to persuade state lawmakers and conservative Protestants to oppose the procedure.
As more Americans have come to rely on IVF to form a family, backlash to these attacks on it reveals a degree of bipartisan agreement that would have been unthinkable in earlier years.
The time is ripe for a new grand bargain.
This Article draws on these lessons of the past to inform a regulatory regime with meaningful potential to bridge the ideological gulf. Members of Congress have already proposed federal legislation to safeguard IVF access, including the Right to IVF Act,
but these bills have stalled because of partisan gridlock.
This look to the past reveals surprising common ground—among both activists and the public—to promote the safety and dignity of families and resulting children who would be most affected by regulations on IVF. This Article proposes three promising areas that center on federal intervention: legality, licensing, and transparency.
Legality legislation would preempt state efforts to forbid IVF or achieve its prohibition in practice. Comprehensive licensing would cover fertility clinics, gamete banks, and other entities, along with the procedures they use, oversight for compliance and quality control, and approval of clinical research for emerging technologies.
Meanwhile, transparency measures would collect and publish comprehensive data about reliability and safety and promote truth in advertising and informed consent.
Licensing and transparency regulations at the national level would work in tandem with guidelines on contested issues such as what kinds of traits to test and select for, payment to gamete donors and surrogates, and determinations of parentage. The proposal set forth in this Article would leave the ultimate authority to make these decisions with the individual states, drawing direction from professional associations and allowing flexibility for individual clinicians.
The history of IVF teaches that the search for a perfect, all-encompassing federal law has resulted in a regulatory impasse that no longer satisfies anyone. As some rush to fill the regulatory void by eliminating IVF altogether, this Article favors preserving access to IVF while holding its reliable provision to account and enhancing the transparency of a practice that plays a central role in American family life.
Many will bristle at the idea of regulating IVF in ways that make it resemble abortion even more, fearing the violence, partisan rancor, and punitive laws that characterize the American experience around Roe. But the history this Article uncovers underscores that it is often better to leave the regulation of both abortion and IVF to medical providers and professional organizations, which have more clinical expertise and may be less vulnerable to influence from interest group commitments and political polarization.
What’s more, the contemporary social-movement efforts that doomed the Right to IVF Act have fueled concerted campaigns to restrict or ban IVF—either across the board
or for certain families, such as same-sex couples.
These political efforts suggest that opening the door to regulation of any kind runs the risk of restricting IVF to the point that it is no longer available or even criminalizing it. Comparing the history of abortion and IVF throws these concerns in sharp relief: Abortion regulations have primarily served as stepping stones toward outright prohibition and the recognition of constitutional fetal rights.
Perhaps, then, the best available outcome is to preserve the status quo, in which providers are left largely to regulate themselves.
This Article recognizes that regulating IVF poses considerable risk in the current political climate. But the recent transformations it traces reveal that IVF’s regulation is likely now inescapable, particularly in state legislatures. The interconnected legal histories of IVF and abortion reveal another lesson, too: After committed social movements launched campaigns to limit and ban abortion, the strategy of avoiding federal involvement and state regulation operated to undermine reproductive liberty rather than reinforce it.
Since Dobbs, proponents of abortion rights have accordingly proposed codifying some protections into federal law, such as the Women’s Health Protection Act.
Meanwhile, efforts to enshrine reproductive rights in state constitutions have taken on more profound significance, even in places where abortion is already protected by state statute.
We see parallels to IVF here too. If the push for state IVF restrictions is under way, and if leaving regulation to medical providers is no longer likely to be a long-term solution, then our task is to design a realistic federal regulation that will avoid foreseeable harms—and set us down a path that will bring greater justice to families that turn to IVF.
This history teaches that IVF could come to more closely resemble abortion in another sense too: If the present bipartisan consensus about the value of protecting IVF falls away, anti-abortion efforts to polarize the issue could pay dividends in state legislatures or even Congress. Some pro-life groups are working hard toward this outcome.
Meanwhile, Project 2025—an influential conservative political initiative to reshape the federal government under the Trump Administration—has pressed for limits on IVF that would disproportionately affect LGBTQ couples.
Such campaigns suggest a cost to waiting when it comes to federal regulation of IVF, as much as there are potential costs to intervening. It is reasonable to ask whether there are better proposals than the one advanced here. This Article offers it less as an optimal or ideal solution than as a helpful baseline to avoid the worst extremes that could make IVF all too similar to abortion—and as a starting point for discussing the kind of regulation that would make IVF safer and more accessible.
Part I tells the origin story of a regulatory vacuum that emerged in the United States unlike anywhere else in the developed world. Part II analyzes the recent collapse of that fragile compromise. Part III charts a sound future for IVF and for related assisted reproductive practices like surrogacy, donor insemination, and prenatal testing. This path forward is critically informed by a distinctive political history and by IVF’s relationship to abortion since Roe and after Dobbs.