IVF Users Face Uncertain Legal Landscape

In vitro fertilization, or IVF, is increasingly at the heart of the nation’s culture wars — and it’s an area where the law remains unsettled. Though only two percent of births annually are the result of the assisted reproductive technology, state courts continue to grapple with questions like ownership over and rights of embryos.

In 2024, the Alabama Supreme Court made headlines when it held that frozen embryos used in IVF qualified as children for the purposes of the state’s wrongful death laws. The case, LePage v. Center for Reproductive Medicine, was brought by three families whose embryos were destroyed because a hospital patient accessed a storage facility, removed the embryos from the freezer, and dropped them. The decision that would-be parents could sue over the “wrongful death” of “extrauterine children” led IVF providers in the state to pause services and prompted the state legislature to pass a law insulating IVF providers from civil and criminal liability.

Politically, the furor around IVF — in which eggs are extracted from ovaries, fertilized in a laboratory, and transferred to a patient’s uterus — has hardly died down. President Donald Trump, who proclaimed himself the “fertilization president,” promised to create plans to make IVF affordable. Earlier this month, Trump unveiled his plan: The administration cut a deal with a pharmaceutical company to lower the price of common fertility drugs and created an option for employers to offer insurance that covers IVF as a standalone benefit to employees. Critics have pointed out the moves do not ensure that IVF will remain legal and unrestricted, much less more affordable or effective. The administration’s reluctance to push for more may reflect resistance from some conservatives: Abortion opponents in organizations from the Heritage Foundation to Students for Life have laid out plans to fundamentally change the laws governing IVF, including proposals to limit the number of embryos that can be created or implanted.

Legal developments in state courts have continued in LePage’s aftermath. Some suits in federal court pit patients against providers accused of negligence. Other fights begin when former partners cannot decide what to do with their embryos when they separate. These suits raise critical questions about the nature of reproductive rights and the personhood of frozen embryos.

Beginning in the 1990s, state supreme courts laid out several approaches to address disputes about the fate of embryos. Often, courts looked for a contract governing the embryos and then balanced the parties’ interests if no such agreement existed. Less often, the courts left the status quo in place unless the parties could reach a new agreement about the disposition of the embryos.

But since the U.S. Supreme Court overturned Roe v. Wade in 2022 — eliminating a federal constitutional right to abortion — new questions have emerged. What is the relationship between abortion bans and IVF cases? Do these laws mean that IVF embryos have rights and cannot be destroyed or donated for research? And what is the relationship between state constitutional amendments recognizing reproductive rights and IVF? Do these amendments confer a right to avoid unwanted genetic parenthood, if someone does not wish embryos implanted? Do they also create a right to overcome infertility? And how should these rights, if they exist, be reconciled?

State courts are considering — and, sometimes, avoiding — these questions in a new frontier of litigation on reproductive health.

Embryo Disposition and the Beginning of Life

The Indiana Court of Appeals recently addressed whether embryos qualified as rights-holding persons under the 14th Amendment. The anti-abortion movement has long argued that the word person in the that amendment applies the moment an egg is fertilized — and that embryos have rights to due process and equal protection under the law. In the context of IVF, abortion opponents argue, this means that embryos have the rights of persons and cannot be destroyed.

The question of embryonic personhood emerged in a dispute between a divorcing couple in Indiana. Elizabeth and David Freed feuded about control of their remaining IVF embryo. Elizabeth wanted to preserve and implant the embryo to give her existing child a biological sibling, while David wished to dispose of the embryos.

Reasoning that the U.S. Supreme Court “afforded recognition and some state protection to human embryos at the earliest stages of development,” the Indiana Court of Appeals held that embryos deserved “special respect” under the law. But the court also stressed that Indiana’s abortion law, which defined life as beginning at conception, explicitly exempts IVF from criminal prohibitions on abortion. Frozen embryos thus did not have the rights of persons.

Turning to the fate of the embryo here, the court adopted an approach developed by the Colorado Supreme Court’s 2018 In re Marriage of Rooks, which outlined multiple considerations for resolving disputes over what to do with embryos. These include the intended use of the pre-embryos by the party seeking to preserve them, the ability of the party seeking implantation to have children through other means, the parties’ original reasons for undergoing IVF, the potential burden on the party seeking to avoid becoming a genetic parent, whether either party was engaged in a bad-faith attempt to use the pre-embryos as leverage in the dissolution proceeding, and any other considerations relevant to the parties’ unique situation.

The Indiana appellate court found the court below had effectively applied these factors in finding that Elizabeth’s desire to procreate, which she was unlikely to satisfy using other means, trumped David’s desire to have the embryos destroyed.

The question of embryonic rights also came up in a recent Ohio case. Another divorcing couple, E.B. and R.N., could not agree about their embryos: The wife, E.B., wanted to use them to get pregnant, while R.N. wanted them donated to another couple. A trial court had concluded that the embryos were property and therefore should be subject to the rules governing the disposition of marital property.

The Ohio Court of Appeals rejected this argument, reasoning that the embryos were not property but “life or the potential for life.” The court held that allowing E.B. to implant the embryos was most consistent with a constitutional amendment Ohio voters passed in 2023, which recognized a right to make reproductive decisions, including choosing abortion or fertility treatment. Both E.B. and R.N. exercised protected rights when they “made the decision to have frozen embryos created using their respective sperm and eggs.” R.N. had a right not to have genetic children he did not wish but he waived his right not to have those embryos implanted when he consented to create them. The Ohio Supreme Court denied a petition for review.

Dodging the Question

These decisions show how much remains unsettled about the rights governing IVF. But state appellate courts sometimes have avoided the central questions raised in IVF fights.

This was true in a recent Georgia case involving the embryos of Stephanie and Bruce Wohlers. Stephanie wanted to implant the couple’s embryos after their divorce, while Bruce wanted them destroyed. The trial court awarded the embryos to Stephanie without clearly articulating the rules it was applying. Bruce appealed, arguing that the trial court hadn’t fully considered his right to avoid procreation. The Georgia Court of Appeals affirmed the trial court’s decision, reasoning that Bruce had not clearly invoked his right before the trial court and that there were factors weighing in Stephanie’s favor, such as “the physical, emotional, and financial toll that the IVF process had placed on her.”

A decision from the Minnesota Court of Appeals came out the other way when Dawn Pieper and her former partner, Jacob Carlson, could not agree about what to do with their embryos. The trial court, applying the Rooks factors, held that Carlson’s desire not to become a parent trumped Pieper’s desire to implant the embryos. Among other things, the court stressed evidence suggesting that Pieper might have some prospect of having another child without IVF. The court of appeals held that the trial court had not abused its discretion in applying the Rooks factors. Because the parties agreed this balancing approach was the appropriate one, however, the court resolved the case by applying Rooks without resolving the question of whether it would be the proper legal framework in the future.

In recent months, the supreme courts of Michigan and Texas have turned away IVF cases. The Michigan dispute involved Sarah Markiewicz and her estranged husband, David. The couple had four children, including three conceived via IVF using David’s sperm and eggs from Sarah’s sister. When the pair divorced, they couldn’t agree on the fate of their single remaining embryo.

Sarah stressed that the embryo represented her last chance to have another child. David responded that his desire not to have an additional child carried more weight because he was more biologically connected to the embryo than Sarah. A trial court declared the embryo to be marital property and ultimately awarded it to David. Sarah appealed to the Michigan Court of Appeals, which ruled the court should apply factors akin to those in Rooks in the absence of an agreement between the parties. On remand, stressing David’s biological connection to the embryo, the trial court again awarded the embryo to him.

But Michigan, like Ohio, had recently passed a reproductive rights ballot initiative. Sarah appealed to the Court of Appeals again, contending that the trial court failed to consider whether the ballot measure conferred rights on her or David that could decide the dispute. The appellate court held that it wasn’t obvious that the amendment would have any effect on the outcome. The court affirmed the trial court’s decision.

The Michigan Supreme Court ultimately declined to hear Sarah’s appeal. With little explanation for its decision, the court simply stated that it would not intervene. Writing in concurrence, Justice Brian Zahra wrote that the courts generally were not well-equipped to resolve questions about IVF. “Our legislature,” he wrote, “is the appropriate body to decide the weighty policy questions presented not just in this case but also by the science of in vitro fertilization more generally.”

The Texas Supreme Court also dodged an IVF case involving a divorcing couple, Gaby and Caroline Antoun. Caroline clearly expressed a desire to implant embryos the couple had made, while Gaby had not resolved what he wished to do with them. The Antouns had a contract governing what would happen to their embryos in the event of a divorce, which stated that Gaby would have the power to make a decision. The trial court upheld the contract and awarded the embryos to Gaby.

Caroline appealed. Central to her argument that the trial court erred in treating the embryos as property subject to contract was the state’s abortion ban, which, she argued, established that embryos qualified as rights-holding persons from the moment of fertilization. An intermediate appellate court disagreed, reasoning that Caroline’s argument was “a classic example of taking a definition out of its legislatively created context and using it in a context that the legislature did not intend.” Caroline appealed, but the Texas Supreme Court declined to hear her case.

Legal Risk

Recent state cases surrounding IVF underscore the legal uncertainty around the issue. At the federal level, there is little law on IVF; the most robust statute, which requires IVF clinics to report their success rates, lacks a rigorous enforcement mechanism. Members of Congress across the ideological spectrum have promoted bills protecting IVF, but none have passed.

All of this makes for an explosive mix. There are more than 1.5 million frozen embryos in the United States today. Conflicts between couples, or between patients and providers, are inevitable, and neither state nor federal law provides much guidance about what should happen when a struggle begins. State courts will be on the front line of this newest conflict in the American wars over reproduction.

Mary Ziegler is Martin Luther King Professor of Law at University of California, Davis and the author of Personhood: The New Civil War over Reproduction

Suggested Citation: Mary Ziegler, IVF Users Face Uncertain Legal Landscape, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ(Nov. 10, 2025), https://statecourtreport.org/our-work/analysis-opinion/ivf-users-face-uncertain-legal-landscape