Democrats look to protect fertility treatments in post-Roe era

• Rep. Susan Wild (D-Pa.) is introducing companion legislation in the House.
• Sarah Bogdan, director of government affairs at the American Society of Reproductive Medicine, which helped develop the bill, said that the organization is "concerned that in the rush for some states to pass 'personhood' bills in January, states may inadvertently or purposefully ban IVF."

The big picture: State anti-abortion laws that define embryos or fetuses as "unborn human beings" could apply to those created through IVF or other fertility treatments, legal experts and health experts argue.

• A personhood law could make it illegal to discard a surplus embryo and also limit what patients can do with their own genetic material, said Fabiola Carrión, director of reproductive and sexual health at the National Health Law Program.

What we're watching: Next year, Republican state lawmakers are expected to introduce a series of measures in state legislatures.

• In Virginia, a bill has been pre-filed for the 2023 legislative session that states that life begins at fertilization, and the does not contain language that exempts embryos created through IVF.
• Florida state Rep. Michele Rayner (D) told reporters at a conference hosted by the State Innovation Exchange last week that she expects her Republican colleagues to introduce personhood legislation during next year's session that could put fertility treatments in jeopardy.

Details: Duckworth and Murray's Right to Build Families Act, which was provided to Axios, faces long odds of passage in a divided Congress.

• It states that a person has a right to assisted reproductive technology that should be protected. If enacted, it would prohibit limiting someone from seeking or receiving fertility treatments.
• The bill would ban regulating a person's ability to retain their "reproductive genetic materials," as well as bar restricting health providers from providing assisted reproductive technologies.

What they're saying: This legislation is a direct response to personhood bills because these could potentially "prevent families from accessing their own reproductive materials," Duckworth said in an interview.

• "I want to make sure that we protect Americans' right to these most private and personal decisions, and frankly, politicians don't belong in that decision making process," Duckworth added.
• Abortion bans "are forcing women to stay pregnant against their will and are, at the very same time, threatening Americans' ability to build a family through services like IVF. It's hard to comprehend, and it’s just plain wrong," Murray said in a written statement to Axios.

Don't forget: Some abortion bans contain clauses that explicitly state that their restrictions do not apply to fertility treatments, though reproductive health advocates say that those exceptions might not be enough to guarantee access in red states.

• Several bans, including some with those exceptions, could be challenged in court and this post-Roe legal uncertainty means that it is unclear "how solid those [clauses] are," said Barb Collura, CEO of Resolve: The National Infertility Association, which was involved in the creation of the Duckworth-Murray legislation.

• If a personhood bill were to contain an exception for fertility treatments, it would be "contradictory," which could be confusing to health providers, Carrión said.
• Health providers could "interpret this in the most conservative way, which is to not proceed with the IVF" to protect themselves from potential prosecution, she added.

Between the lines: While legislation that explicitly restricts, bans or regulates assisted reproduction is rare, state lawmakers have considered it in the past, and recently, some Republican politicians have expressed openness to regulating IVF, with anti-abortion groups openly opposing assisted reproductive technologies.

• Louisiana has a law that makes it illegal to discard an unused embryo, unless it fails to develop after a 36-hour period and deemed nonviable.
• Georgia lawmakers introduced a bill in 2009 to limit the number of embryos that can be created during an IVF cycle. The bill also stated that an embryo was "a biological human being who is not the property of any person or entity."
• In 2021, South Dakota lawmakers considered a bill that would have required health providers to track how many embryos were created in infertility treatments and report them to the state.

What's next: Duckworth said she expects Republicans to block the bill if it is brought to the floor, similar to earlier this year, when the GOP blocked legislation that would have created a federal right to birth control use. At the time, several Republican lawmakers suggested that the legislation was not necessary because contraception was not under threat.

• The legislation is unlikely to be taken up in the lame-duck session, but Duckworth said that she will continue to introduce the legislation in Congress "until we can get it passed."

Go deeper: Republicans' thorny path ahead on fertility policy