in vitro Insemination, or in vitro fertilization, is increasingly at the center of this country’s culture wars and an area where the law remains unresolved. Although assisted reproductive technology accounts for only 2% of births per year, state courts continue to grapple with issues such as embryo ownership and rights.
In 2024, the Alabama Supreme Court made headlines when it ruled that frozen embryos used in in vitro fertilization qualify as children for purposes of the state’s wrongful death law. The case is Lepage vs. Reproductive Medicine Center, The patients were transported by three families whose embryos were destroyed when inpatients accessed the storage facility, removed the embryos from the freezer, and dropped them. A decision that parents-to-be could sue over the “wrongful death” of their “extrauterine children” caused IVF providers in the state to suspend services and prompted the state Legislature to pass legislation exempting IVF providers from civil and criminal liability.
Politically, the furore over in vitro fertilization (in vitro fertilization, in which eggs are removed from the ovaries, fertilized in a laboratory, and implanted in a patient’s uterus) has barely subsided. President Donald Trump, who calls himself the “Fertilization President,” has promised a plan to make IVF affordable. Earlier this month, President Trump announced his plan. The administration ended agreements with drug companies to lower the price of common fertility drugs and created an option for employers to offer insurance to employees that covers in vitro fertilization as a standalone benefit. Critics say the move does not guarantee IVF will remain legal and unrestricted, much less affordable or effective. The administration’s reluctance to push it further may reflect resistance from some conservatives. Abortion opponents from groups ranging from the Heritage Foundation to Students for Life have proposed fundamental changes to the laws governing in vitro fertilization, including proposals to limit the number of embryos that can be created or implanted.
Legal developments continue in state courts LepageThe aftermath of. Some lawsuits in federal court pit patients against health care providers accused of negligence. Fights can also ensue when ex-partners cannot decide what to do with the unborn child when they separate. These cases raise serious questions about the nature of reproductive rights and the personhood of frozen embryos.
In the early 1990s, state supreme courts developed several approaches to addressing disputes over the fate of fetuses. In many cases, courts looked for a contract governing the embryos and balanced the interests of the parties where no such contract existed. Less commonly, courts have left the status quo unless the parties reach a new agreement on the disposition of the embryos.
However, since the U.S. Supreme Court overturned the Roe vs. Wade In 2022, the federal constitutional right to abortion will be abolished, raising new questions. What do abortion bans have to do with IVF? Do these laws mean that IVF embryos have rights and cannot be destroyed or donated for research? And what do IVF have to do with state constitutional amendments recognizing reproductive rights? Will these amendments give someone the right to avoid unwanted genetic parentage if they do not wish to have their embryos implanted? Will they also create a right to overcome infertility? And if these rights exist, how should they be adjusted?
State courts are considering, and in some cases avoiding, these issues in a new area of reproductive health litigation.
Embryo placement and the beginning of life
The Indiana Court of Appeals recently discussed whether embryos qualify as rights holders under the Fourteenth Amendment. The anti-abortion movement has long argued that this phrase: people The amendment applies the moment an egg is fertilized and says embryos are entitled to due process and equal protection under the law. In the context of in vitro fertilization, abortion opponents argue that this means that embryos have human rights and cannot be destroyed.
The issue of a fetus’s personality came up in a dispute between a divorcing couple in Indiana. Elizabeth and David Freed were at odds over the management of the remaining IVF embryos. Elizabeth wanted to save and implant the fetus to give her existing child a biological sibling, but David wanted to dispose of the embryo.
The Indiana Court of Appeals held that the embryos deserved “special respect” under the law because the U.S. Supreme Court “has conferred recognition and certain state protections on human embryos in their earliest stages of development.” But the court also emphasized that Indiana’s abortion law, which defines life as beginning at conception, specifically exempts IVF from criminal prohibitions on abortion. Therefore, frozen embryos had no human rights.
Turning now to the fate of the fetus, the court adopted an approach developed by the Colorado Supreme Court in 2018. Luke’s remarriageoutlined multiple considerations for resolving disputes about what to do with embryos. These include the intended use of the pre-embryo by the party seeking preservation, the ability of the party seeking implantation to produce a child by other means, the party’s original reason for undergoing IVF, the potential burden on the party seeking to avoid genetic parenthood, whether either party has engaged in a malicious attempt to use the pre-embryo as leverage in dissolution proceedings, and other considerations related to the parties’ unique circumstances.
The Indiana Court of Appeals found that the courts below effectively applied these factors to find that Elizabeth’s reproductive desires, which were unlikely to be satisfied by other means, outweighed David’s desire to destroy the embryo.
The issue of fetal rights was also raised in a recent Ohio case. Another divorced couple, EB and RN, could not agree on their embryos. Wife EB wanted to use the embryos for pregnancy, but RN wanted to donate the embryos to another couple. The trial court concluded that the fetus is property and should be subject to the rules governing the disposition of marital property.
The Ohio Court of Appeals rejected this argument, stating that embryos are “life or the potential for life,” not property. The court found that allowing EB to transfer the embryos is most consistent with a constitutional amendment passed by Ohio voters in 2023 that grants the right to make reproductive decisions, including the choice of abortion or infertility treatment. Both EB and RN exercised their protected rights when they “made the decision to create frozen embryos using their respective sperm and eggs.” RNs had the right not to have unwanted genetic children, but when they consented to the creation of embryos, they waived their right not to have those embryos implanted. The Ohio Supreme Court denied the request for review.
dodge the question
These decisions demonstrate how much unresolved issues remain regarding the rights governing IVF. But state appellate courts sometimes avoid central issues raised in IVF battles.
This was also the case in the recent Georgia case involving the unborn child of Stephanie and Bruce Wallers. Stephanie wanted to have the couple’s fetus implanted after their divorce, but Bruce wanted the fetus destroyed. The trial court awarded the embryos to Stephanie without explicitly specifying the applicable rules. Bruce appealed, arguing that the trial court did not give sufficient consideration to her right to avoid reproduction. The Georgia Court of Appeals upheld the trial court’s decision, reasoning that Bruce had not clearly exercised her rights and that there were other factors in Stephanie’s favor, including “the physical, emotional, and financial strain that the IVF process placed on her.”
When Dawn Pieper and her ex-partner, Jacob Carlson, couldn’t agree on what to do with their unborn child, the Minnesota Court of Appeals ruled in the opposite direction. The court of first instance rook The factors argued that Ms. Carlson’s desire not to become a parent outweighed Ms. Pieper’s desire to transfer the embryo. The court highlighted, among other things, evidence suggesting that Mr. Pieper could have another child without IVF. The Court of Appeals held that the trial court did not abuse its discretion in applying the Act. rook factor. However, the parties agreed that this balancing approach was appropriate, and the court resolved the case by applying the following: rook without resolving the question of whether it will be an appropriate legal framework in the future.
In recent months, the Michigan and Texas supreme courts have dismissed IVF lawsuits. The Michigan dispute involved Sarah Markiewicz and her estranged husband David. The couple have four children, three of whom were conceived through in vitro fertilization using David’s sperm and Sarah’s sister’s eggs. When the two divorced, they could not agree on the fate of their only remaining unborn child.
Sarah emphasized that this fetus was her last chance to have another child. David responded that his desire not to have any more children carried more weight than Sarah’s because he was more biologically connected to the fetus. The trial court declared the fetus to be marital property, and it was ultimately awarded to David. Sarah appealed to the Michigan Court of Appeals, which ruled that the court should apply the same factors as in the case. rook If there is no agreement between the parties. On remand, the trial court emphasized the biological relationship between David and the fetus and again awarded him the fetus.
But Michigan, like Ohio, had recently passed a reproductive rights ballot initiative. Sarah appealed again to the Court of Appeals, arguing that the trial court did not consider whether the voting measure gave her and David the right to decide the dispute. The Court of Appeal held that it was not clear whether the amendments would affect the outcome. The court upheld the trial court’s decision.
The Michigan Supreme Court ultimately rejected Sarah’s appeal. There was little explanation for the ruling, only that the court would not intervene. Justice Brian Zahra agreed, writing that courts are generally ill-equipped to resolve questions about IVF. “Our Congress is the appropriate body to decide the important policy issues presented not only by this case but by the science of IVF more generally,” he wrote.
The Texas Supreme Court also avoided an IVF case involving divorcing couple Gabby and Caroline Antone. Although Caroline had clearly expressed her desire to transfer the couple’s embryos, Gabby had not yet decided what she wanted to do with them. The Antouns had a contract that stipulated what would happen to the unborn child in the event of a divorce, and it said Gabby would have the say. The trial court upheld the contract and awarded the embryos to Gabby.
Caroline appealed. Central to her argument that the trial court erred in treating embryos as property subject to a contract was the state’s abortion ban, which she argued established that embryos qualified as rights holders from the moment of fertilization. The Intermediate Court of Appeals disagreed, arguing that Caroline’s argument was a “classic example of taking a definition from its legislatively created context and using it in a context for which the Legislature did not intend.” Caroline appealed, but the Texas Supreme Court refused to hear her case.
legal risk
Recent state lawsuits over IVF highlight the legal uncertainty surrounding the issue. At the federal level, there are few laws regarding IVF. The strongest laws require IVF clinics to report success rates, but lack strict enforcement mechanisms. Lawmakers across the ideological spectrum have pushed bills to protect IVF, but none have passed.
All this creates an explosive mix. There are currently more than 1.5 million frozen embryos in the United States. Conflicts between couples or between patients and health care providers are inevitable, but neither state nor federal law provides much guidance on what should happen when a conflict begins. State courts will be on the front lines of this latest conflict in America’s war on reproduction.
Mary Ziegler is the Martin Luther King Professor of Law at the University of California, Davis, and the author of the following books: Portraits: The new civil war over reproduction
Recommended Citation: Mary Ziegler, IVF users face an uncertain legal situationSᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (November 10, 2025), https://statecourtreport.org/our-work/analysis-opinion/ivf-users-face-uncertain-legal-landscape
