Is in vitro fertilization under threat in Kentucky too? Law matching Alabama’s deepens concerns

The three women challenging Kentucky’s abortion law with their lawyers: From left, Aaron Kemper, Jessica Kalb, Sarah Baron, Lisa Sobel and Benjamin Potash. (Photo provided)

For Lisa Sobel and her husband, being able to have a child through in vitro fertilization, or IVF, was “a dream come true.”

“For us, this really is a joy,” Sobel, of Louisville, said. “We want for there to be other families to be able to have this joy.”

But the recent state Supreme Court ruling in Alabama defining frozen embryos as live children — effectively suspending IVF in that state — has sent shock waves through the IVF community nationwide. 

That includes Sobel and her lawyers, who believe Kentucky’s laws on abortion — one virtually identical to Alabama’s — jeopardize IVF here because they define life as starting at fertilization.

“We read the laws and saw that what happened in Alabama could happen in Kentucky,” said Aaron Kemper. “We’re in trouble.”

He and lawyer Benjamin Potash represent Sobel, the lead plaintiff of three Jewish women suing over Kentucky’s abortion laws, in part because of the potential impact on IVF. They also allege the laws violate their rights under the state’s Religious Freedom Restoration Act because the abortion laws state life begins at the moment a human egg is fertilized, a Christian religious belief not shared by Jews.

In Alabama, several clinics, including one at the University of Alabama at Birmingham, stopped IVF services after the Feb. 16 ruling that frozen embryos are “extrauterine children” and thereby are entitled to protection as a human life.

Sobel and her lawyers say the Alabama ruling heightens the urgency for a ruling in their lawsuit which was submitted to Jefferson Circuit Judge Brian Edwards nearly a year ago for a decision. The lawsuit, asking the judge to find the laws violate Kentucky’s Constitution, was filed in the wake of the 2022 U.S. Supreme Court ruling ending the federal right to abortion.

“We’re waiting on a decision, that’s where we are,” Kemper said.

Claims ‘hypothetical’

The Kentucky Attorney General’s office, which is defending the abortion laws, agreed to seek a decision, or summary judgment, from the judge in a May 2023 filing, asking Edwards to rule in its favor.

It argues the laws are constitutional and said the women’s claims of harm are “hypothetical.” 

The filing, under former Attorney General Daniel Cameron, a Republican, also argues the laws have no impact on IVF. Republican Attorney General Russell Coleman, who took office in January, is now handling the case.

Coleman, in a statement, called on state officials to focus on “safeguarding access to IVF,”  which he described as “an incredible blessing for so many seeking to become parents.”

Under IVF, a woman’s eggs are extracted and fertilized in the lab to be implanted in the uterus; unused embryos may be frozen for future use, donated for research or “adoption” by other parents or discarded.

“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,” the attorney general’s filing said.

The women’s lawyers disagree, saying that Kentucky’s laws explicitly state human life begins at fertilization, leaving the door open for a challenge to IVF for the potential loss or destruction of embryos.

“The previous attorney general said until he was blue in the face that IVF is not illegal,” Potash said. “It’s come to pass.”

That leaves health providers scared of lawsuits or prosecution, they said.

That’s what happened in Alabama after three couples whose frozen embryos were accidentally destroyed in a fertility clinic filed a lawsuit under the state’s “wrongful death of a child” law. The high court ruled in their favor, saying state law “applies to all children, born and unborn, without limitation.”

The Sobel lawsuit challenges a pair of Kentucky laws that took effect after the U.S. Supreme Court in June 2022 struck down Roe v. Wade, ending the federal constitutional right to abortion. One, the “trigger law,” ended abortion upon such a decision; the other bans abortion after about six weeks, once embryonic cardiac activity is detected and before many women realize they are pregnant.

Both laws permit very narrow exceptions, allowing abortion only to save the life of or prevent disabling injury to a patient. The laws have no exemptions for rape or incest.

“Word for word, the law in Alabama is identical to the law in Kentucky,” Potash said, referring to the trigger law.

The Alabama law banning abortion even has the same title as Kentucky’s “trigger” law, the “Human Life Protection Act,” and both were passed in 2019, Potash said.

“In all likelihood, this is part of a larger concerted effort by conservatives,” Potash said.

Sobel and plaintiff Jessica Kalb both had children through IVF after struggling with fertility. A third plaintiff, Sarah Baron, was considering the procedure, said the lawsuit filed in October 2022.

A ruling in their favor would protect IVF — as well as restore the right to abortion, Potash said.

“We’re hoping we can get a ruling here in Kentucky,” he said.

The lawyers said they don’t know why Edwards hasn’t yet ruled.

Lawmakers scurry to save IVF

The potential threat to IVF has sent lawmakers scurrying to protect the procedure.

Three Kentucky lawmakers have filed such bills.

Senate Bill 373, filed by Sen. Whitney Westerfield, R-Fruit Hill, would protect health care providers from liability or prosecution over the loss of a human embryo.

Westerfield is a staunch opponent of abortion and has supported state laws pushed through by the legislature’s Republican supermajority that ban the procedure in almost all circumstances.

But he is an outspoken supporter of IVF.

Westerfield’s filing comes as he and his wife are expecting triplets, he announced in January. He said on the Senate floor that they adopted and transferred embryos for the pregnancy. His 6-year-old son is an “embryo adoption” baby, he said. 

Sen. Cassie Chambers Armstrong, D-Louisville, filed Senate Bill 301, which would protect  from “criminal liability” IVF health care providers who meet a “professional standard of care.”

And Rep. Daniel Grossberg, D-Louisville, filed House Bill 757, which would prohibit state or local authorities from trying to limit or interfere with reproductive technology. 

It also calls for a new provision in state law declaring that a fertilized human egg or embryo in any form outside the uterus “shall not be considered an unborn child.”

The bills follow a recent flurry of action in the Alabama legislature which has advanced bills meant to shield IVF providers following a public outcry over that state’s Supreme Court decision.

Alabama Gov. Kay Ivey, a Republican who opposes abortion, said she supports such legislation.

Kentucky Gov. Andy Beshear, a Democrat and supporter of abortion rights, last week blasted Republicans for the current predicament over IVF.

“This is what happens, though, when you embrace extremism,” Beshear said.

In the U.S. Senate, a bill to establish national protections for IVF was blocked by Republicans last week.

Potash and Kemper, the lawyers for the women seeking to overturn Kentucky’s abortion ban, said the problem with most such efforts at the state level is that they try to sidestep laws that say human life begins at fertilization.

“These people want to pass an IVF law while maintaining that a fertilized egg is a human being and I don’t see how that’s possible,” Kemper said. “I don’t see how they’re ever going to be able to enact a law that protects IVF while maintaining that a fertilized embryo is a human being.”

The best outcome to clarify things in Kentucky would be a ruling in the pending lawsuit, the lawyers said.

“We’re hoping we get a decision on our case before someone sues for wrongful death in Kentucky,” Kemper said.

Sobel said the delays are frustrating for her and others in her position considering  IVF. The procedure is expensive — costing couples tens of thousands of dollars — and takes an emotional toll, she said.

It’s especially frustrating that the decision rests largely with male officials including a judge, she said.

“Women can only have children for so many years,” she said. “The older you get the more complicated your pregnancy is.”

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