Introduction
The intersection of abortion and assisted reproduction is a fruitful space for study that deserves substantially more attention in legal scholarship. For this reason, The New Abortion is a significant and timely piece with much to teach readers about the divergent legal treatment of abortion, which is overregulated in comparison to other forms of healthcare
and was deeply politicized well before Dobbs v. Jackson Women’s Health Organization,
and IVF, which has received comparatively little attention from federal and state lawmakers. In their article, Professors Dov Fox and Mary Ziegler demonstrate how and why lawmakers have left IVF relatively untouched by law as compared to abortion. That disparate treatment perhaps derives from the perception that IVF and abortion sit at distinct and wholly opposite ends of the procreative spectrum. IVF benefits from the belief that it is fundamentally a tool for creating life, and abortion suffers from the belief that it exists only as a tool to end prenatal life. This stark contrast presents itself through widespread public valorization and celebration of babies born through IVF, even while acknowledging that the path to success is frequently difficult and expensive.
Abortion seekers and providers experience shaming, stigma, and even violence, especially when women seek out so-called “elective” abortions.
Few things in the world are as basic as these contrasting views of IVF and abortion. Abortions end fetal life, including fetuses that have anomalies that will inexorably cause death in utero or soon after birth.
Abortions also save the lives or preserve the health of people whose pregnancies have gone awry.
IVF creates thousands of potential or nascent lives that will either remain in frozen stasis indefinitely, fail to implant, be donated to research, or be destroyed.
For a person who believes that frozen embryos warrant the respect due to newborns, IVF destroys millions of lives.
The comparison to abortion is even more stark in the context of selective reduction, a practice that terminates some fetuses in a multiple fetal pregnancy—which is more common among people who become pregnant through IVF—to reduce health risks to the other fetuses or to the pregnant person.
While much of the public may view IVF and abortion as serving cross purposes, reality is more complex.
The overly simplistic contrasts between IVF and abortion lead Fox and Ziegler to warn that IVF risks becoming the focus of organized anti-abortion efforts post-Dobbs that could lead to its prohibition.
After providing a fascinating description of the legal history of IVF regulation, Fox and Ziegler proffer ideas for federal legislative changes that they argue may find common ground between opposing sides in the abortion wars.
This second part of their article, while ambitious, is less persuasive than the first because the authors do not adequately account for the present radical political moment and the historical precedent of discriminatory regulation of reproduction in the United States. Therefore, this Piece focuses on how the authors could deepen and complicate their legal history and then problematizes their legislative proposals.
Part I quickly rejects the idea of IVF as “the new abortion” given that abortion remains a focal point of the regulation of reproduction in the United States. More crucially, several factors, including differences between the public face of IVF users and the public face of women seeking abortions,
mean that closer regulation of IVF is likely to be very different than abortion regulation and unlikely to include outright bans on the procedure.
Part II details myriad concerns with The New Abortion’s legislative proposals. Crucially, the authors fail to fully engage with long-standing patterns of mainstream abortion advocates ignoring or delaying seeking positive changes in law and policy that would benefit people whose reproductive futures are too often relegated to the margins. If laws and policies created to protect IVF also treat the needs of marginalized people as secondary, they will replicate disturbing patterns that reproductive justice advocates have appropriately challenged for decades.
I. Race, Class, Gender, and the History of Regulating Reproduction in the United States
Though state legislators, Congress, and courts—including the U.S. Supreme Court—are not done restricting abortion,
Fox and Ziegler are correct that IVF has become part of the reproductive rights zeitgeist post-Dobbs.
Even so, regulation of IVF is unlikely to become the new abortion when considered within the larger context of the regulation of procreation in the United States. As discussed below, law and lawmakers have treated reproduction with differing levels of concern depending on whose reproduction is at issue.
Public discourse about reproductive practices can also vary depending on the people being discussed.
In the current context, this is exemplified by the vitriol that can accompany public discussions of abortion and abortion seekers
versus the sympathy often offered to people who are infertile.
Fox and Ziegler flag some of those forces in The New Abortion,
but their analysis could more thoroughly excavate the history of regulating reproduction in the United States to better contextualize what might be on the horizon for IVF. That history is long, bleak, and steeped in stratified reproduction.
Throughout U.S. history, procreative regulation has arisen from lawmakers’ desire to maintain white supremacy, uphold patriarchy,
and reinforce the proper roles for women, especially white women, as wives and mothers.
That history includes requiring the children of enslaved Black women to carry the status of their mothers as legal property.
That history includes restricting access to birth control
and creating the Hyde Amendment,
which has effectively banned the use of Medicaid funds for abortion except in rare instances.
It is also a history of state-sanctioned eugenic sterilizations of people the state deemed “feeble-minded,” a drain on the public coffers, or criminals.
The history of regulating reproduction further includes the Supreme Court validating a state interest in potential life that justified broad restrictions on abortion access, including bans on post-viability abortions unless needed to save the life or health of a pregnant woman.
The history of reproductive regulation is indispensable to the discussion of why IVF has not been deeply regulated and to predicting likely characteristics of future regulation. In an early footnote, Fox and Ziegler nod to this need for context, explaining: “IVF’s eclipse by the shadow of abortion politics has crowded out other possible explanations for its underregulation, such as . . . [its use] by upper-middle-class people who are frequently married and want to have a child.”
Later they note that those upper-middle-class users are largely white,
despite the fact that statistics show women of color disproportionately struggle with getting diagnosed with infertility, accessing IVF treatment, and succeeding once treatment begins.
IVF users reflect racial and class divides in the need for and access to this technology.
By contrast, women of color and low-income women are overrepresented in abortion statistics.
If the public face of IVF is opposite-sex, white, married couples, the privileges of presumed heterosexuality, whiteness, and marriage attach when lawmakers consider IVF regulation, further entrenching stratified reproduction.
Government control over reproduction skews toward protecting the reproductive futures of favored classes and dismantling the reproductive futures of others. In this moment of surging pronatalism, spurred by claims of falling birth rates
and calls for more babies,
warning of a coming prohibition of IVF is too simplistic. This is especially so because while abortion abolition is not a complete third rail in the political and public spheres,
eliminating access to IVF is not a politically powerful platform for those who wish to have influence beyond the fringes.
More likely, IVF regulation will shape who can access the technology by focusing on affordability and insurance
and on how patients can use it (that is, what testing can be performed on embryos, how many embryos can be created in a cycle, or bans on embryo destruction). What these new laws will look like is especially concerning given efforts to boost birth rates that explicitly or implicitly invoke eugenics and discredited “science” about white genetic superiority.
Taking account of very positive popular opinion on IVF, politicians would do well to focus not on politically unpalatable bans but on ways to make IVF more affordable for the “right” people: white, upper-class, opposite-sex couples who may not be able to afford the upfront cost of IVF but will be able to financially support future children without public assistance.
The aftermath of the Alabama Supreme Court’s decision in LePage v. Center for Reproductive Medicine, P.C. is revealing in this regard.
Fox and Ziegler cite LePage as a quintessential case in which the lack of adequate redress through negligence claims led to a problematic decision from the Alabama Supreme Court declaring extracorporeal frozen embryos to be children under the state’s wrongful death statute.
Rather than a lesson on the drawbacks of state courts, the case’s aftermath illuminates whose reproductive rights lawmakers protect and how they protect them. Post-LePage, the Alabama legislature passed legislation broadly protecting IVF providers from civil and criminal liability for IVF-related errors, thus allowing stalled IVF cycles to restart in the state.
Compare the rapidity of this response to legislators’ refusals and long deferrals in restructuring exceptions to restrictive abortion laws that delay or deny abortion care, causing documented harms, including death, to pregnant people.
In other states, legislators have sought to reassure constituents and media that their restrictive abortion laws are not meant to interfere with IVF.
The lesson: Attacking IVF brings about drastic and hasty legislative action to protect it, even in deeply red states,
while the deaths of those who sought or needed abortion care leads to legislative silence, sluggish response times, and even renewed support for the laws restricting abortion access.
This differential treatment is unsurprising given the historically disparate regulation of reproduction and opposing beliefs about abortion and IVF as life taking versus life giving.
Stratified reproduction and polarizing beliefs about IVF and abortion are core elements of the legal history of IVF regulation warranting deeper analysis in The New Abortion.
A. Mainstream Advocacy and the Reproductive Justice Movement
In addition to more reflection on the history of reproductive regulation in the United States, a legal history of IVF could grapple more robustly with the identities of the agenda setters during this extended period of regulatory inaction on IVF—potentially finding commonalities between the past and the present. Understanding the motivations, commitments, internal and external restrictions, and blind spots of leaders can unearth the identity of those whose rights motivate advocacy.
Fox and Ziegler argue that leaders on both sides were fine with a “regulatory vacuum” that allowed them to avoid the “complicated questions that IVF raised.”
But knowing that the leaders of the mainstream abortion rights movement in the 1990s were often white women reveals how leaders’ personal identities, coupled with a lack of engagement with women of color, shaped movement priorities.
The reproductive justice (RJ) movement, founded in 1994, was a powerful response to women of color’s limited role in setting a national agenda for reproductive rights advocacy.
Black women birthed the RJ movement to respond to their erasure from mainstream discourse and most leadership roles in national organizations.
These women did not organize themselves around abstract ideas of choice, nor did they center abortion in their advocacy.
Recognizing myriad ways in which the law denied Black women and other women of color access to pregnancy and the tools of pregnancy creation, RJ leaders set the right to have children as the first tenet of their movement, followed by the rights not to have children and to parent children in safe and healthy environments.
The disconnect between RJ activists and mainstream women’s and reproductive rights organizations is worth exploring in the context of how reproductive rights organizations thought about abortion and IVF because it reveals alternatives for responding to the current anti-abortion interest in regulating IVF. The divide between how mainstream organizations advocated around issues of sterilization versus how RJ activists framed that same discussion is instructive. When it came to sterilization, mainstream advocates raised concerns that physicians were refusing to perform sterilizations at the request of middle-class, white women and depriving them of the choice to permanently avoid pregnancy.
For women of color, the issue of sterilization focused on the persistent practices of forced and coerced sterilizations.
In the realm of abortion, mainstream leaders focused on “choice” and abortion’s legality, while RJ activists forced attention to abortion’s inaccessibility even where legal.
Mainstream advocates even forged coalitions that supported their work on choice but created conflicts with women of color activists.
Too often, and arguably to the movement’s detriment, the public-facing reproductive rights movement did not, by design or by ignorance, reflect the lived realities of many women of color, especially Black women.
As Fox and Ziegler note, RJ founders, leaders, activists, and scholars know and knew that infertility is and was disproportionately an issue for Black women and other women of color in the United States.
RJ leaders also understood that issues surrounding IVF were not just about personhood but about equal access, antidiscrimination, and the potential exploitation of Black and brown women in the United States and abroad as reproductive laborers.
To the extent that the mainstream organizations’ decision to step away from IVF reflected a consensus among those who set the national reproductive rights movement agenda, perhaps leadership that included more RJ leaders and activists would have spawned different decisions about tackling issues around IVF. A more robust legal history of IVF and the reproductive rights movement, a project that Fox and Ziegler will hopefully pursue, would provide a more complete picture.
The post-Dobbs era of advocacy offers an opportunity to center marginalized voices in debates about how to protect IVF. Audacious leaders can expand their IVF advocacy beyond shoring up support for abortion rights, as The New Abortion describes of past leaders’ efforts.
A broader RJ-driven agenda would craft laws and policies that privilege the experiences of women and pregnant people at the margins, even when those solutions are presently politically untenable.
Arguably, a lesson to draw from the demise of Roe v. Wade is that advocating for the most politically tractable solutions that do not provide relief for the most vulnerable among us brings hollow and temporary victories.
Said another way, advocacy rooted in the needs of the most privileged brings little or no justice for the most vulnerable.
B. Building a New Law of IVF
Fox and Ziegler acknowledge that the fertility industry in the United States is not a Wild West,
and many in the fertility industry strongly dispute any account of IVF as sitting in a regulatory vacuum.
On the federal level, the FDA, CDC, and Centers for Medicare and Medicaid Services—pursuant to the Clinical Laboratory Improvement Act—regulate IVF practices related to the handling of gametes and embryos, and the FTC regulates advertising.
Other regulation comes from state medical licensing boards, courts, and professional oversight by prestigious organiz-ations like the American College of Obstetricians and Gynecologists (ACOG), the Society for Assisted Reproductive Technology (SART), and the American Society for Reproductive Medicine (ASRM).
Before seeking congressional action, advocates would do well to consider whether they can more effectively use existing formal and informal regulations in lieu of spending political capital to create new, potentially ineffective mechanisms.
Fox and Ziegler lean in favor of seeking protection for IVF from the federal government and creating new legislative and regulatory pathways for future federal protections because leaving IVF regulation to hostile states allows anti-choice advocates to chip away at IVF with the same long-range strategy used to attack abortion.
They imply that state efforts to curtail IVF access will prevail in state legislatures, as has been the case with abortion restrictions.
But, note again, the immediate backlash post-LePage that caused the undeniably abortion-hostile Alabama legislature to swiftly protect access to IVF.
Well before LePage, Louisiana passed a statute that declares embryos to be juridical persons,
as described in The New Abortion.
Despite this statute, IVF remains accessible to Louisianans.
Knowing that deeply abortion-hostile states that have protected embryos have not implicitly or explicitly banned access to IVF, neither pre- nor post-Dobbs, offers some hope that the fate of IVF and abortion are not irrevocably intertwined.
Fox and Ziegler justify their call for federal solutions to the problems they identify in the world of IVF based on the many ways that the current system fails IVF patients and the risks of a potential ban on the practice.
This Part has considered the ban issue, so the next Part considers the bevy of concerns they raise about current practices in IVF and the legislative solutions they propose to fix them. Those concerns include:
- A “high incidence” of negligence and underreporting of wrongdoing and reproductive never events
that presumably flow from insufficient regulation of clinics and laboratories;
- Inability of state courts to handle complex IVF-related malpractice cases;
- Inadequate data available to IVF patients about safety of procedures and provider success rates,
including lack of access to substantive reviews;
and
- Deceptive practices in advertising.
They make several recommendations related to these concerns, including a more robust clinic certification system that would involve “monitoring fertility clinics and related entities, conducting longitudinal studies of existing practices, maintaining safety standards, and enforcing them;”
greater transparency from fertility care providers and an information system that would provide data that is currently unavailable, including “systematic [and] reliable disclosures about IVF errors or failures, adjusted for risk[;] . . . reporting of success rates associated with specific diagnoses and treatments;”
and reviews and ratings that would “include . . . subjective experiences of patients, individually and aggregated, including nonintrusive background information about their reproductive health.”
Without question, maintaining IVF’s legality, reducing error in IVF practices, ensuring truth in advertising, and requiring robust, informed consent practices are all laudable goals. Achieving those goals, however, should happen in ways that truly benefit patients without creating more barriers to access that will fall most acutely on those already less able to avail themselves of IVF treatment. In particular, as advocates build a proactive agenda for IVF regulation, they should be wary of using available and probably short-lived political goodwill to create potentially onerous, invasive, and expensive regulatory requirements that increase costs for patients, demonize healthcare providers, and treat IVF with the same exceptionalism
that unintentionally mirrors the successful anti-abortion playbook.
With these thoughts in mind, Fox and Ziegler’s proposals leave much to be desired.
II. Congress Will Not Save Us
Unlike its illuminating legal history, the federal legislative proposals in The New Abortion are unsatisfying in their scope and focus. Any legislative proposals related to IVF will inevitably be met with attempts to do far more than Fox and Ziegler propose, and these risks warrant more than passing mention. In the present climate, pushing for federal IVF-related legislation that can be cabined in a productive way to avoid harm to marginalized people is naïve given open hostility to many of the families who will use IVF or other forms of assisted reproduction to have children.
As they must, Fox and Ziegler recognize this environment and cite Project 2025’s limited notion of family, which reduces families to opposite-sex, married couples raising their genetically related children.
Under this view, government should not support single parenthood—only the creation of “stable, married, nuclear families.”
Further, laws and policies related to reproductive technologies “should never place the desires of adults over the right of children to be raised by the biological fathers and mothers who conceive them.”
These foundational ideas confirm that same-sex couples, single people, and people who use donated or purchased gametes to create children are not part of a “well-ordered nation”
in the eyes of those that share Project 2025’s views. Given this backdrop, the notion of a moment ripe for political compromise on IVF is anathema to a worldview that condemns a wide swath of U.S. families. It is difficult to imagine language that could make clearer the risks of federal action under the current Administration and Congress.
Fox and Ziegler also claim that allowing IVF to remain untouched is no longer tenable post-Dobbs and that leaving regulation to the states is risky.
They express a valid concern that if advocates for IVF access fail to act, opposition forces will fill the void, as they did during the campaign to make abortion illegal in the United States.
But regulatory vacuums can perhaps serve as safety nets, and that has arguably been true in the context of IVF for decades, as it has meant that measures that discriminate against marginalized people have not been enshrined into law. Further, while a federal response would be more all-encompassing and potentially more powerful and protective for some IVF users, the focus on maintaining Roe over the almost fifty years between Roe and Dobbs ultimately did not save abortion rights.
A state-based strategy—especially when, as here, there is strong support for IVF, even from people who do not support abortion—is less risky than Fox and Ziegler suggest. According to the Pew Research Center:
[E]ven those who say abortion should be illegal in most cases generally view IVF access positively (60% say it’s good). And while views of IVF are least positive among those who say abortion should always be illegal, this group is still twice as likely to say having access to IVF is good (40%) as to say it’s bad (20%). An additional 40% say they are not sure.
This data is another reminder that, in many people’s minds, the distinctions between IVF and abortion are meaningful. IVF’s protectors must use caution and exercise precision when predicting how the anti-abortion playbook could translate to a broad-based IVF agenda.
As IVF protectors, Fox and Ziegler seek “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.”
To achieve their goals, they prioritize legality, licensing, and transparency in the IVF industry, each of which is discussed in turn.
A. Legality
To protect the legality of IVF, Fox and Ziegler propose changes to the regulatory scope of the FDA,
an agency with a vast portfolio encompassing public health related to the safety and efficacy of drugs, medical devices, biologics, food, and cosmetics; regulating tobacco products; supporting innovation in making medical products safer and cheaper; and aiding in counterterrorism efforts.
To this list of responsibilities, Fox and Ziegler suggest adding the regulation of “fertility ‘products[]’ from donors to embryos” to allow for consolidation of this responsibility and better enforcement.
They believe their proposals would increase pressure for compliance with existing regulations related to “reporting, screening, testing, and reliability,” which presently fall to several agencies to enforce.
Existing regulations require screening for gamete donors and sellers as well as testing and storage of reproductive tissue to ensure there are no sexually transmitted infections in assisted reproduction.
Providers found out of compliance are subject to appropriate sanction.
Further, due to market pressures, commercial gamete sellers conduct a range of genetic tests not required by law, thus exceeding current regulatory standards.
Where rules already exist, the question is one of enforcement capacity, not rule changes, and consolidating enforcement in an already heavily burdened agency may not be fruitful. Further, the desire to obtain or maintain membership in crucial professional organizations like ASRM and SART may incentivize clinics to engage in best practices.
Members of the public can search for clinics in a SART database to confirm membership in one of the leading professional organizations for IVF providers in the United States.
Second, IVF is already a prohibitively expensive endeavor for many prospective patients, and Fox and Ziegler’s proposals risk raising the price even further for all individuals who purchase gametes, especially sperm, not just those who use it for IVF.
The practical result is the recommendations may not benefit, and could actually injure, the populations Fox and Ziegler want to protect by pricing them out of an already exorbitantly expensive market.
This is especially strange to the extent that the concerns about negligence and liability, framed by the authors as largely focused on the mishandling of embryos, not gametes,
make gamete purchasers and providers collateral damage in a quest for reform.
In lieu of expanding the FDA’s reach, Fox and Ziegler endorse creating a new federal agency dedicated to the oversight of assisted reproduction.
This second possibility mimics agencies like the Human Fertilisation and Embryology Authority (HFEA) in the United Kingdom, which maintains close governmental supervision over reproductive technologies and the patients who use them.
As they must, Fox and Ziegler recognize that replicating agencies from other countries is unrealistic in the United States because “any compromise on IVF would have to account for distinctive dimensions in matters of healthcare financing, free-market enterprise, scientific progress, reproductive freedom, and government regulation.”
An especially salient difference between the United States and the United Kingdom is the latter’s commitment to healthcare as a human right
—a veritable foreign concept in U.S. healthcare policy.
Part of this commitment includes some public financing for assisted reproduction, though some policies uniquely burden single women and women in same-sex couples.
Given these significant differences from the U.S. political and healthcare ecosystems, creating an agency that regulates without any mandate to provide financial resources for care is a shadow of what exists in other countries.
Even if the model of expanding agency purview or creating a new agency was appealing, what Fox and Ziegler suggest is so far out of step with the current moment as to be completely implausible. The second Trump Administration quickly began decimating federal agencies and halting wide-ranging research projects that it did not support, including research on IVF.
HHS, which houses both the CDC and FDA, has experienced these drastic cuts.
Further, the Administration’s cuts specifically target populations of people for whom access to IVF and assisted reproduction and expanded research about these procedures are crucial.
The Administration’s mass firings at the CDC, as Fox and Ziegler point out,
included the staff who worked on the National ART Surveillance System, the CDC initiative that enforced portions of the Fertility Clinic Success Rate and Certification Act of 1992.
While imperfect, IVF patients can use data from this surveillance system to better understand their chances for success and to identify providers from whom they want to receive treatment.
The fate of that data collection and reporting is now questionable.
If the Trump Administration is already scaling back current regulations on IVF, spending money on new staff to do more work within existing agencies or a new agency is a pipe dream.
This Administration is stacked with supporters of Project 2025,
a document which, as described earlier in this Piece and in The New Abortion, argues that children are best served when raised by their biological parents who are married and of the opposite sex.
Turning the Trump Administration’s eye to the commercial sale of gametes would almost certainly not end with enhanced enforcement of testing requirements, but would instead lead to the kind of regulation that Fox and Ziegler want to avoid, including “onerous and pretextual ‘quality’ restrictions on clinics designed to drive them out of business.”
It is unfathomable that any such effort conducted under the present Administration would not cause substantial harm to those whose reproductive plans are already most at risk for disruption.
B. Licensing, Monitoring, and Compliance
The New Abortion’s most plausible proposals fall under the category of licensing, monitoring, and compliance.
To avoid and track what Fox and Ziegler describe as “reproductive never events,” like the negligent destruction of embryos, transferring embryos into the wrong patient, and other catastrophic errors, they propose enhanced monitoring, more longitudinal studies, and better enforcement of safety standards.
Recognizing that the costs of their proposals will be passed on to the consumer (a tariff, if you will), they also suggest government subsidies to discourage price increases.
But seeking federal subsidies to absorb increased costs is infeasible in our present political climate.
Further, as Fox and Ziegler point out, professional organizations like SART and ASRM already create clinical accreditation requirements and issue reports on best practices.
The authors tacitly claim that these existing mechanisms are insufficient to address negligence,
but more regulation cannot guarantee total compliance or remove the risk of human error. Increased financial and human investment in enforcing existing IVF regulations could improve clinical safety and efficacy without burdening patients with rising healthcare costs.
Fox and Ziegler also suggest a way to respond to the issue of multifetal pregnancies, which are an increased risk during IVF.
Multifetal pregnancies heighten risks for pregnant people and the fetuses they carry.
Again, Fox and Ziegler seek to tackle this problem with recommendations and government incentives
that are unlikely to become a reality. Their chosen example refutes their larger argument about the ineffectiveness of professional self-regulation.
ASRM guidelines, which are issued and periodically revised to recommend the best practices in embryo transfers,
have substantially decreased the rate of multiple births for IVF patients, even absent the passage of new laws.
Compliance with IVF safety standards and guidelines through professional self-regulation has worked, and other issues Fox and Ziegler discuss could be addressed by the same, especially when combined with increased enforcement of existing laws and regulations.
C. Data-Gathering, Transparency, and Communication
Fox and Ziegler offer a set of proposals to combat the IVF industry’s purported lack of transparency about wrongdoing.
They believe their suggestions would incentivize insurance companies to put only the best fertility care providers in their networks and help patients better identify error-prone providers.
The lack of existing data about the IVF errors that Fox and Ziegler believe occur could mean people are hiding their mistakes, or it could mean that there are not copious failures of this sort happening in American IVF clinics. This author is wary of advocating for legislative change by casting aspersions on an entire industry without data. This tactic mirrors those employed by anti-choice advocates to demonize abortion providers and justify targeted regulation of abortion providers (TRAP) laws.
Ultimately, those advocacy efforts have not benefited patients.
Any instance of preventable error and harm caused by medical malpractice for which there is no available remedy is a failure of the tort system, potentially rectifiable by state law, which is where the law of torts resides almost exclusively,
thus speaking to the need for a state-based reform strategy.
Further, there might be opportunities for more aggressive self-regulation, including requirements of transparency for admission of errors as a prerequisite to SART or ASRM membership.
No doubt, incentives for hiding wrongdoing are significant for bad actors, but there are also incentives for ignoring practice guidelines about embryo transfers in the hope of increasing a clinic’s success rate. Even so, the reduction in multiples created through IVF speaks to the industry’s ability to focus on ethical practice.
Fox and Ziegler acknowledge that the FTC is already charged with monitoring and enforcing regulations about truth in advertising but essentially argue that a new agency could do a better job.
In the absence of any viable path forward for the creation of a new agency, pushing for better enforcement from the agency already tasked with this job makes significantly more sense from the perspective of what is possible. The same is true for the goal of greater information sharing. As previously discussed, Congress passed the Fertility Clinic Success Rate and Certification Act to provide consumers with better data on individual clinic success rates.
Here, again, is an example of how change to the status quo can happen without creating new agencies or new responsibilities for existing agencies. When it became clear that some providers were gaming the system, such as by refusing to work with patients whose chances of successfully achieving a pregnancy were minute, Congress updated the Act to change the reporting system to create greater transparency for IVF patients.
Perhaps the most worrying suggestion from Fox and Ziegler, if only for its deceptive simplicity, is that the federal government impose national standards for informed consent for IVF patients. They argue that this would ensure a standard level of information sharing, including information about side effects and chances of success, which is already a basic part of informed consent to medical care, including IVF.
Fox and Ziegler, however, suggest that informed consent includes “communicating the fact of [the clinic’s] for-profit nature and any potential conflicts of interest, for example, to the extent that seeking higher pregnancy and birth rates is at odds with . . . health and well-being.”
This is a radical suggestion that far exceeds the normal regulation of informed consent in medical practice offered with scant justification for treating IVF differently from other forms of healthcare.
Finally, while this Piece emphatically imputes no ill will to Fox and Ziegler, the call for national standards for informed consent mimics biased informed consent requirements governing abortion provision in many restrictive states under TRAP laws.
In some cases, those laws force healthcare providers to share false information, shame patients, and delay care.
Anything that moves in this dangerous direction is especially perplexing given the myriad resources to help IVF providers ensure patient informed consent.
Additionally, since 1992 when the Fertility Clinic Success Rate and Certification Act became law, the plethora of publicly accessible information has only grown, and potential patients no longer need to rely on advertising from clinics for assistance in learning more about the rigors of IVF treatment.
SART and the CDC provide online tools through which IVF patients can predict their chances for success based on characteristics like age.
There are publicly available rankings of IVF clinics.
IVF patients have extensive access not only to general information about IVF but to substantive reviews of fertility clinics made by patients on public forums or on search engines like Google.
None of this is to say that fertility care providers should be free to lie or deceive patients, including by failing to secure appropriate informed consent at all stages of treatment. The tools for consumer education are significant and accessible to anyone with a smartphone or access to the computers at a public library. Broad shifts in law that will inevitably incorporate changes that target the most marginalized IVF patients warrant caution.
Even more, accuracy of information is yet another area for which federal legislation exists. The Fertility Clinic Success Rate and Certification Act of 1992 addresses the issue of advertising exaggerated success rates,
though Fox and Ziegler raise concerns that fertility industry lobbyists watered down that law.
They suggest that this new era of compromise post-Dobbs creates a way for “more robust information-forcing legislation that responds to the deficiencies of past legislation.”
Any such attempt to buttress existing laws will likely face the same well-funded industry lobbyists and the same questions about whether the real issue is lack of enforcement.
Mandated informed consent language would not solve the issues of causation, tangible injury, and limited compensation that Fox and Ziegler raise in their critique of existing tort law,
and the inclusion of language about the for-profit nature of IVF clinics is especially baffling. Presumably, the vast majority of adult patients who receive care outside of settings where healthcare providers are clearly volunteering their services understand that payment is how the physician makes their living. Singling out IVF providers suggests that their profit motive is particularly nefarious, which is eerily reminiscent of anti-choice claims about abortion providers making money at the cost of the lives of the “unborn” and the health of pregnant people.
Implicitly singling out IVF providers for engaging in nefarious practices for profit is patently not the goal of The New Abortion, but rhetoric about IVF providers should be measured and accurate in a world in which violence against abortion providers, encouraged by dangerous rhetoric, remains a substantial concern.
A future in which violence haunts IVF providers is neither welcome nor desirable.
Conclusion
Fox and Ziegler should be applauded for wading into the regulatory morass surrounding the fertility industry, which goes beyond IVF. A business that makes babies creates complex regulatory dilemmas often ill-suited to the bright line rules or the blunt remedies law offers.
The overarching concern of this Piece has been how best to regulate IVF given the persistence of stratified reproduction, a deep history of discriminatory regulation of procreation, unjustified incursions into the right to procreate using assisted reproduction, the potential for mirroring regressive anti-abortion legislation, and a political climate ripe for targeting disfavored family forms. In searching for compromise, Fox and Ziegler risk an outcome that declares victory from maintaining IVF’s legality even if that compromise maintains or even deepens disparities in access and success with treatment.
There are many questions that The New Abortion does not resolve satisfactorily. Is the purported regulatory vacuum the central problem to be remedied, or is it the failure to vigorously enforce existing regulation? If there are true gaps in regulation, can they only be remedied through new laws, regulations, or agencies? Even if new regulation is proper and necessary, are federal remedies viable and preferred, especially given the role some state courts and state constitutions are playing in fighting reproductive oppression?
Though well-intentioned, Fox and Ziegler’s regulatory proposals have serious implications for buyers and sellers in fertility markets and create higher burdens on noncoital reproduction than exist for those who procreate coitally. These different standards must be justified by something more than the fact that regulation is more practicable for those struggling with infertility.
In a political moment rife with bombast; disinformation; and impossible-to-keep, pie-in-the-sky promises, a federal compromise on IVF that protects legality but does not take rights from vulnerable communities is a veritable impossibility. Unfortunately, history tells us that political compromises seldom lean in favor of the most marginalized. Given the typical consumer of IVF—white, upper class, and married
—new IVF laws are unlikely to create total or virtual illegality; rather, they will protect the interests of the technology’s primary consumers, which means more private insurance coverage and perhaps access to testing to optimize the yield of nondisabled children. Therefore, any push from IVF’s proponents to stave off abortion-like restrictive regulation by creating their own abortion-like regulation is inapt. Just as abortion opponents created broad TRAP laws,
IVF’s proponents and protectors should be wary of allowing lawmakers to create a new category of targeted procreative regulation for patients who use assisted reproduction, a category that Professor Katherine Kraschel has described as TRIP laws, or targeted regulation on IVF provision.
Ultimately, in the effort to be big enough to matter but small enough to avoid fracture, the legislative proposals offered by Fox and Ziegler do too little and too much.
An alternative to placing IVF in the crosshairs of a Republican-controlled Congress is to engage in conversation about what pre-Dobbs abortion rights strategies need to be reevaluated, reformed, or jettisoned. The legal history in The New Abortion illuminates some deficiencies and builds anticipation for subsequent work that mines those lessons more expansively. Those lessons, from the perspective of this author, include the risks of relying on tenuous federal protections not explicitly enumerated in the Constitution; the need to sustain and support state-level advocacy rooted in grassroots activism and led by local RJ leaders; the necessity of treating reproductive healthcare as an integrated model and avoiding exceptionalism, whether negative or positive, for particular patients or particular types of care; the need for fertility care providers to embrace the unambiguous connections between their work and abortion provision; a commitment to justice instead of just rights when it comes to reproduction, which requires centering the experiences of marginalized people; and the need for radical and brave leadership to create and sustain progress.
The question of leadership is especially crucial. The 2025 Black Reproductive Justice Policy Agenda, created through the collaboration of over fifty Black-led organizations and individuals, provides one roadmap for what that leadership could look like and what it might seek in terms of legislation.
In that agenda, the members of the coalition reaffirm their commitment to their principles in the face of a frightening assault on many communities of color, but especially Black communities. They write:
[R]est assured, in 2025, even as we see political and policy conditions continue to deteriorate in our country, particularly for Black women, girls and gender-expansive people, this agenda takes not one step back from its goals. Our commitment to Reproductive Justice is unwavering. Our demands are bold; our direction is clear.
There is room for multiple strategies in any movement, but the history of biased reproductive regulation in the United States illuminates the need to not just include marginalized people, but to allow those people to lead.
If there is to be RJ:
[A]ll members of our society—particularly Black women, girls, and gender-expansive people—[must] have equitable access to the social, economic and political supports that enrich our lives. This equity is not optional—it is the essential correction to historic and persistent injustices and ensures that Black women, girls, and gender-expansive people can reach our full potential.
This is the work before us. It demands new strategies, new coalitions, and cannot be achieved through moderation.