The Future of IVF in California

Apr 19, 2024By Fred Silberberg - Family & Assisted Reproductive Technology Law


In February of this year the Alabama Supreme Court ruled that embryos are people.  This ruling, specific to Alabama, raised all sorts of questions amongst fertility providers as to what the ruling meant for them and how this would impact the availability of fertility services in the future.  Since the time of that ruling, I have received inquiries from people in our local community asking if they should be concerned.
The short answer is no. The longer answer is more complicated.
Before explaining that, there is something noteworthy to point out: While the Alabama ruling certainly got a lot of attention and scared physicians and patients alike, what has come to be known as the “fetal personhood movement” did not start with Alabama.  In fact, there are ten states at present which treat fetuses as “persons” during every stage of pregnancy. Two additional states consider fetuses “persons” as long as they are in the womb. Undoubtedly, you are aware of the nearly ten-year-long failed battle carried out by Nicholas Loeb against my client, Sofia Vergara to force the implantation of pre-embryos that were stored in a California lab. Of the four lawsuits that encompassed that dispute, two of them were initiated in Louisiana by Loeb.  Why? Because Louisiana has for years codified the concept of fetal personhood and Loeb believed his chances of success there were better than in California where the consent forms were entered into and where the pre-embryos were created and stored. Fortunately, Loeb could not make his case over jurisdiction in Louisiana, and we prevailed on behalf of Vergara in California, getting him permanently enjoined from taking action with regard to the embryos unilaterally.
California does not treat embryos as “persons”. We do not have any “fetal personhood” statutes in California, and it is unlikely we ever will.  The “fetal personhood” movement is mostly associated with politically conservative states in the South.  It is expected that this movement will gain traction as it backed by the same groups that are backing abortion restrictions. In just the past two weeks, we have seen restrictive abortion laws go into effect in Florida and Arizona. However, in our state of California, we have a fairly long history of affirming properly prepared agreements on the issue of parentage through case law and certain provisions of the California version of the “Uniform Parentage Act”.  For this reason, patients in California who seek fertility services and their physicians should feel comfortable knowing that these procedures will continue to be available to them.
There is an overriding concern here given the current make-up of our United States Supreme Court.  You are undoubtedly aware of the Court’s decision known as Dobbs v. Jackson Women’s Health Organization 597 U.S. 215 (2022) which reversed the long-standing principle set forth in Roe v. Wade, 410 U.S. 113 (1973) which held that a woman had the right to choose whether to terminate a pregnancy and struck down the then-existing abortion ban in effect in the State of Texas.  Unfortunately, the Supreme Court has now stated that the laws addressing whether a woman can terminate a pregnancy are to be determined by individual states. This, however, does not directly address the question of whether a fetus has legal standing under Federal law. In the Dobbs decision, Justice Samuel Alito stated that the court took no position on “if and when prenatal life is entitled to any of the rights enjoyed after birth”.  If the Court were to give legal status to a fetus it would directly impact a fertility practitioner’s ability to provide services.  As you are aware, fertility providers in Alabama stopped providing services after that court’s ruling.
Thus far the Supreme Court has declined to consider this specific question. In 2022, two women and a Catholic group petitioned the court to review the dismissal of a lawsuit against the state claiming that Rhode Island’s “Reproductive Privacy Act”, which mirrored the holding in Roe v. Wade, deprived them of their rights as voters in the State of Rhode Island.  They also claimed that the “unborn plaintiffs” rights were being denied under the Act. In short, Plaintiffs were seeking to provide legal status to “unborn” humans in light of the Dobbs decision essentially attempting to obtain a similar result to that ordered by the Alabama Supreme Court, though with broader application[1]. The trial court dismissed the complaint filed in the case known as Jane Doe, a parent and friend of Baby Doe, Nicole Leigh Rowley, a parent and next friend of Baby Roe, and Catholics for Life, Inc., d/b/a Servants of Christ for Life v. Daniel McKee in his Capacity as Governor of the State of Rhode Island on multiple grounds. The Court of Appeal affirmed the dismissal and, fortunately, when the Petitioners sought review in the United States Supreme Court, the court refused to hear the case.  
The Supreme Court’s refusal to grant review is consistent with the holding in Dobbs, that these matters are to be determined based on state law.  However, as has been the case in the recent past, this Supreme Court, consisting of a majority of conservative justices appointed by former President Donald Trump keeps moving farther to the right. While the Court declined to hear Doe v. McKee, the “personhood movement” is not content to live with the status quo.  There is always the possibility that another case makes its way to Washington and gets heard.  In the interim, we are fortunate that this is not an issue in California and hopefully it so remains.

[1] The Alabama ruling addressed the question of whether plaintiffs whose embryos had been destroyed could make a claim for wrongful death.  The Alabama Supreme Court held that the embryos were humans for that purpose.