A Death in the Senate

Elegy for IVF legislation

The Right to IVF Act died in the Senate last month after failing to reach a majority of 60 votes at the second attempt. The main sponsor, Senator Tammy Duckworth of Illinois, had a commitment borne of her life experience as a disabled Navy veteran needing fertility treatment to conceive children. I imagine her raw disappointment at losing the goal of extending reproductive health care to more people, including other needy veterans.

The Act would have provided:

1.        A statutory right of access to fertility services, including IVF, to avoid any State from setting unwarranted limitations;

2.        Services for members of The Uniformed Services, their spouses, and partners, including counseling, fertility preservation, genetic testing of embryos, gamete donation, and gestational surrogacy;

3.        Financial help for fertility treatment through health insurance plans that provide obstetric services.

Whatever you think about the proposals, you probably agree the bill suffered an inevitable fate that reflects the sorry state of partisan politics and another waste of congressional time.

The upshot was the same as the bipartisan immigration bill that failed earlier in the year by a similar margin at the behest of Donald Trump. And yet it is paradoxical that he has pirouetted over reproductive care all summer and many Republican lawmakers gave it the thumbs-up. Trump said: “I've been looking at it, and what we're going to do is for people that are using IVF, which is fertilization … the government is going to pay for it, or we're going to get, we'll mandate your insurance company to pay for it, which is going to be great. We're going to do that.” In an election season, it is naïve to trust a promise, especially when it conflicts with Project 2025, authored by allies viscerally opposed to IVF.

Fertility treatment is blown by the tailwinds of a hurricane from The Supreme Court two years ago that canceled entitlement to abortion under Roe v. Wade. In another storm, we witnessed a fiasco in Alabama when its Supreme Court declared that frozen embryos are children until legislators patched the damage. Where there is no safeguard in the Constitution or statute, the conscience of a senior judge can overrule the will of the majority. As I understand the jurisprudence of Oliver Wendell Holmes Jr., he argued that matters of broad social concern should not be decided by the courts but given to elected representatives working within the bounds of the Constitution.

The risk of rogue rulings energized Democrats to draft the bill for the right of access to Assisted Reproductive Technology (ART) despite its narrow chances of success. Some influential antagonists inside the opposite party believe in an ethical ontogeny that requires every embryo to be given a chance of survival. That fallacy spurred me to launch this Substack. The same opponents have, in turn, accused the bill’s supporters of wielding IVF as a political weapon before voters go to the polls. Some people want IVF and abortion left for States to decide, no matter how messy that makes the delivery of care in the country. The bill would have improved on the patchy insurance coverage of fertility, but that positive was likely swamped by projected government costs of IVF, despite Trump’s airy assurance.

Qualifying patients in the British N.H.S count on between one and three free IVF cycles whereas Denmark and some other European countries are more generous. America is an outlier in so many ways. Its big heart for supporting charities contrasts with the reluctance to spend tax-payer money on matters regarded as private and personal. Hence, the uphill struggle for public funding of IVF.

Since the shredding of the Duckworth bill, America remains almost alone among Western nations without a federal IVF law. The Australian State of Victoria in 1984 was the first jurisdiction to enact a law, soon after its clinics pioneered egg donation and embryo freezing. That was a remarkable record in the most Roman Catholic region, ahead of other states and national regulations. After public consultation, the Westminster government passed legislation in 1990 to replace a voluntary licensing authority. Even America’s closest neighbor has had an IVF law for 20 years. I remember scrutiny of our presentations to conservative parliamentarians in Ottawa before they reached a consensus.

Many benefits have flowed from laws. They have safeguarded the interests of patients, protected medical providers from frivolous suits, stopped discrimination, and thwarted extreme practices. And yet, problems have emerged from strictly enforced laws that the failed Senate bill ducked by focusing only on access. The pace of biomedical research runs too fast for laws to keep up. In the past 30 years, the specialty has revolutionized drugs, genetic testing, gene editing, egg freezing, IVF surrogacy, new family structures, and commerce. Regulations drafted in good faith can become outdated, even harmful. The British law limiting frozen embryo storage to five years led to the destruction of thousands of embryos reaching their expiry date in 1996. There is no biological case for a time limit, though there are social reasons. We wish the law could be nimbler.

But will an IVF law dangle forever like a poisoned fruit in America? The Heritage Foundation responsible for Project 2025 declares: “Duckworth’s legislation uses the pretense of protecting access as a smokescreen for enabling an unregulated industry.” Some media outlets have likened ART to the Wild West, but that’s a travesty. Fertility medicine is one of the most heavily regulated specialties in America.

The FDA that approves drugs also enforces regulations on clinics and can fine or close any non-compliant. The CDC tracks the performance of clinics while the Society for Assisted Reproductive Technology delivers professional accreditation, sets standards, and publishes birth outcomes. ART is subject to family law in each State.

Guardrails will never satisfy the fiercest opponents of fertility medicine. They seek no less than the abolition of many standard practices, although approving natural cycle IVF because a single ovum is collected for fertilization. Had the Duckworth bill passed, it would not have been the end of controversy, but I think the threat to IVF is exaggerated. There are too many people on both sides of the aisle with reasons to support it and millions across the world who are alive today because of it. The history of Prohibition in this country taught politicians a lesson about banning something beyond their control. The yearning for a baby is so much stronger than for a drink.

Next: A Cold Look at Preserving Eggs