Does Ky. law protect in vitro fertilization? Depends on who’s asked

Westerfield, of Fruit Hill in Christian County, announced before the legislative session began that he would not seek re-electin this year.

‘They should always be preserved’

Westerfield and his wife, Amanda, are expecting triplets this summer. The three, as well as their 6-year-old son, were adopted as embryos — the result of someone going through IVF and donating eggs. The Westerfields also have a daughter who joined their family as a “traditional domestic adoption.” They have another embryo they are paying around $500 annually to preserve.

“I think they should always be preserved,” Westerfield said. “But I also understand not everybody holds that view. My son is one of those that was preserved, thankfully. These boys that are on the way were preserved.”

The Westerfields chose to have children this way because, had they gone through IVF themselves, “We were worried that we might have more than we could try to transfer on our own,” Westerfield said.

“We didn’t want to have so many left over that we couldn’t … bring to full-term birth ourselves and give a home to. And then you worry about making sure they end up in a home somewhere because we don’t want them destroyed. Not everybody wants to adopt an embryo and be pregnant. Some people do, thankfully.”

Even though the legislature didn’t pass the IVF-specific bills this year, it did pass House Bill 159, which Gov. Andy Beshear then signed into law. It gives health-care providers immunity from criminal charges for medical mistakes.

On the day HB 159 passed the Senate, Westerfield said he believed it would protect IVF by default because it broadly protects “providers.”

The law states: “A health-care provider providing health services shall be immune from criminal liability for any harm or damages alleged to arise from an act or omission relating to the provision of health services.”

Westerfield, who is also a lawyer, said this is “more comprehensive” than what he proposed to specifically protect IVF. “It covered everything mine covered and then some,” he said.

Ben Potash, a lawyer representing three Jewish women who are suing over Kentucky’s abortion law, believes HB 159 does not protect IVF since discarding extra eggs in the IVF process is a willful act.

HB 159 says: “Nothing … limits any liability for gross negligence or wanton, willful, malicious, or intentional misconduct.”

‘No one really knows what the law is’

Potash believes the two topics — abortion and IVF — are too closely related to be separated. Going through IVF in Kentucky right now is “precarious,” he said. “No one really knows what the law is.”

Kentucky Attorney General Russell Coleman has called IVF “an incredible blessing for so many seeking to become parents” and said, “The plain language of Kentucky’s laws makes it clear that neither IVF nor the disposal of embryos created through IVF and not yet implanted are prohibited.”

But Potash says, “Making it civil, secular law that life begins at conception introduces all kinds of complications to IVF, to motherhood in general, to parenthood in general.”

Kentucky’s “Human Life Protection Act” — the trigger law that went into effect after the U.S. Supreme Court overturned Roe v. Wade in 2022 — states that an embryo is an “unborn human being” from egg fertilization to birth.

The 1973 Roe v. Wade decision established abortion as a constitutional right. Once that federal protection was gone, Kentucky’s law updated to all but ban abortion entirely, except in rare and life-threatening situations.

Judith Daar, dean of Northern Kentucky University’s Chase College of Law and a legal expert on reproductive assistance, said that while “Many states have language in their statutes regarding abortion that declare life begins at conception or fertilization,” those laws also link abortion to pregnancy, which “is defined as an attachment of the embryo inside the mom.”

That is the case in Kentucky. The law states that “‘pregnant’ means the human female reproductive condition of having a living unborn human being within her body throughout the entire embryonic and fetal stages.”

“To the extent that all the abortion laws tether and condition the conduct on the existence of a pregnancy, then IVF really does escape the application of the abortion laws, at least in the preimplantation stage when the embryos are still in the laboratory,” Daar explained. “That is not, per se, a pregnancy because it doesn’t meet the definition of the attachment of the embryo into the uterus.”

Because of this, Daar said, Kentucky doesn’t necessarily need to pass an explicit bill on IVF at this time: “There’s nothing that I’m aware of … that suggests that any aspect of IVF practice is illegal under Kentucky law.”

The IVF process
Dr. Sigal Klipstein, chair of the Ethics Committee of the American Society for Reproductive Medicine, said people need IVF for many reasons. Some seek it because of infertility — a man has little to no sperm or a woman does not ovulate, for example. Same-sex couples may undergo IVF as a way to have biological children, she said, or uncoupled people may seek that service for themselves.

“In a typical IVF cycle, a woman might take about 10 days of injections,” Klipstein explained. These are “little, under-the-skin injections, kind of like insulin needles.”

“They sort of bypass the system,” she said. “So instead of having enough hormone to release one egg, you might release five or 10 or 20 eggs.”

A final shot at the end of those 10 days triggers ovulation, Klipstein said. The patient then undergoes anesthesia and eggs are removed with a needle that enters through the vagina under ultrasound guidance.

Eggs are then mixed with sperm in a lab and grown for five to six days. The best one is then implanted into the uterus.

Usually, there are extra eggs left over, Klipstein said. They can be donated, stored, discarded, or be placed in the uterus during a time that won’t result in pregnancy. This is called “compassionate transfer,” Klipstein explained. In this process, “you’re sort of more physiologically, more naturally, allowing the embryos to reabsorb into the body.”

Potash said the “routine” extra eggs make the process complicated if they are considered human beings by law. The Alabama Supreme Court set the precedent for that complication when it ruled in mid-February that frozen embryos are children.

“It’s unrealistic and cost prohibitive, as well as I think a little cruel,” Potash said, “to make those mothers keep those fertilized ova on ice, essentially, forever.”

Klipstein agreed and asked: What happens if someone stops paying or a storage facility closes? “Do you require them to have more babies than they want? I mean, I don’t think you can compel someone to get pregnant against their will to prevent them from discarding those embryos.”

“It would be nice if we had one embryo for one baby, and we could do it as a one-to-one ratio,” she added. “But, you know, medicine doesn’t work that way. And IVF doesn’t work that way.”

Westerfield has a different perspective. “It’s hard for me to imagine someone going into that process without an awareness of the cost,” he said.

IVF can cost between $15,000 and $30,000 per cycle, according to a 2023 article in Forbes. Storage can cost from $350 to $600 per year as well, the magazine reported.

“I don’t think anybody goes into that without knowing whether or not they either can afford it, or have insurance to cover it, or what have you,” Westerfield said.

He and his wife wouldn’t have adopted as many embryos as they did, he said, “if we thought we couldn’t afford to keep this one on ice, frozen.”

“We wouldn’t have done more than what we could transfer at a time,” he said. “We wouldn’t have adopted three; we would have adopted one or maybe two.”

Providers, parents in ‘limbo’

Sen. Cassie Chambers Armstrong, D-Louisville, filed one of several unsuccessful bills to protect IVF this session. She said she is “disappointed” that no specific protections passed.

It might be plausible, she said, that HB 159 “does provide protection to IVF.” But, she said: “I don’t think that it’s decisive.”

The new law deals with criminal and not civil prosecution. That makes it unlikely to be applied to IVF, NKU’s Daar said.

“Instances of physicians acting in a criminal manner in the IVF setting is virtually non-existent,” Daar said. “I’m not saying it never happens, but it’s very, very rare. So a bill that generalizes criminal immunity … would not have a tremendous impact, if any impact, on IVF because that conduct just doesn’t occur.”

For now, Chambers Armstrong is particularly worried about how providers view the law. She wants to spend the interim talking to those people ahead of the next session.

“If IVF providers feel as though they have protection and this bill gives that to them, they will continue to offer services,” she said. “If they are concerned that they’re going to be subject to criminal liability for just doing their jobs, I’m worried that we’re going to see a chilling of making those services available.”

Meanwhile, she does think the state should “repeal … language that people believe could give embryos rights,” she said. But: “I don’t believe this General Assembly is going to do that anytime soon. I hope that people are correct when they say that we can provide some level of protection to IVF with those statutes on the books.”

Rep. Daniel Grossberg, D-Louisville, said the legislature has left “women and medical professionals” in “limbo”. He filed one of the unsuccessful bills to protect the process and was the only one in the House.
“The message that (this) sends,” he said, “is that women in Kentucky don’t have control over their reproductive choices.”

‘Let’s be proactive’

Rep. Lindsey Burke, D-Lexington, has openly discussed her journey with assault, infertility, IVF, miscarriage and abortion. She told the Lantern she doesn’t believe IVF is truly protected under current law.

“As long as fetal personhood is enshrined in Kentucky law, IVF is at risk,” said Burke, who is an attorney and mother of a son whom she had after undergoing IVF.

She is also paying $100 per month to store an embryo, as she hopes for another child someday.

Burke would like to file legislation to get “better insurance coverage for reproductive care” next year. She went into debt around $60,000 to have her son, she said. And: “I don’t think that anybody should have to do that.”

Chambers Armstrong, who is also a lawyer, said: “I’m not sure that we’re going to get an answer as to whether this bill provides the type of protection for IVF that we’re hoping (for) unless and until it is challenged in court and we get a decision from the court.” But she doesn’t want to wait on litigation.

“Let’s be proactive. Let’s go ahead and pass a law that is very clear that it’s protecting IVF services and make sure that folks know that they can continue to receive the care that they have been seeking,” Chambers Armstrong said.

That must wait until at least 2025.

Kentucky Health News is an independent news service of the Institute for Rural Journalism and Community Issues, based in the School of Journalism and Media at the University of Kentucky, with support from the Foundation for a Healthy Kentucky.

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