Azariah Dileo, Class of 2024, Belmont Law
Infertility is not uncommon within the United States. Approximately one in five married women who have not previously given birth and are between fifteen years old and forty-nine years old are unable to become pregnant within the first year of trying. While infertility has several causes with various treatment methods, one such method is in vitro fertilization (IVF). IVF is the process of removing an egg from a woman’s ovaries, fertilizing the egg with male sperm, and then returning the now-fertilized egg to the woman’s uterus. IVF is responsible for approximately one million United States births between 1987 and 2015. Today, this statistic amounts to nearly two percent of all United States births annually.
At the close of 2022, Senator Tammy Duckworth from Illinois, Senator Patty Murray from Washington, and Congresswoman Susan Wild from Pennsylvania introduced a bill called the Right to Build Families Act of 2022 (RBFA). The senators and congresswoman drafted RBFA in the wake of the U.S. Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization. RBFA’s purpose, as set out in the bill, is to “prohibit the limitation of access to reproductive technology, and all medically necessary care surrounding such technology.” The assisted reproductive technology (ART) that RBFA aims to protect encompasses “treatments or procedures which include the handling of human oocytes or embryos.”
Although Dobbs does not directly restrict ART, each state’s laws vary regarding how they govern abortion. Some states have laws that implicate fertility treatments because they define “personhood” as beginning at fertilization (i.e., conception). State laws may also have varying definitions for “fertilization” and “embryo.” These definitions, in addition to the state laws themselves, may have the potential to affect individuals and couples who are seeking ART to build their family. Because state laws regarding abortion and related fertility treatments vary greatly, Senators Duckworth and Murray and Congresswoman Wild want a federal safeguard to protect individuals’ ability to grow their families.
RBFA sets out to prohibit state governments from preventing an individual’s access to ART, a healthcare provider from performing ART treatments or procedures, and insurance providers from covering ART treatments and procedures. In the event that RBFA becomes law and is violated, the U.S. Attorney General would be able to bring suit on behalf of the United States against a state, government official, individual, or entity that violates RBFA’s prohibitions. RBFA would also give individuals adversely affected by RBFA violations the ability to sue their state or any government official. Additionally, healthcare providers would be able to commence an action for relief on their own behalf or on behalf of their staff and patients. A court may grant plaintiffs suing under RBFA equitable relief upon proving their case as well as award plaintiffs the costs for the judicial proceedings.
Currently, RBFA is still a bill and has not been enacted into law. While the bill has inspired some political debate, the bill’s outcome remains uncertain.
42 U.S.C. § 263a-7(1)