Louisiana Senate added a new restriction to IVF, but it might not be enforceable

A lab tech uses equipment employed for in vitro fertilization in this undated photo. (Getty Images)

Louisiana lawmakers have added a restriction to receiving in vitro fertilization (IVF) services that doesn’t exist in current law, but it’s not clear whether it can be enforced.

Senators voted 28-10 Monday to block the transfer of embryos created through IVF to an out-of-state storage facility “for the purpose of destruction.” Afterwards, the chamber voted 36-1 for an overall bill to try and protect IVF providers from criminal charges and civil lawsuits under the state’s abortion ban.

The future of the broader IVF legislation is up in the air with the Senate’s out-of-state storage amendment added onto it, according to Katie Bliss, an attorney that specializes in IVF contracts that has been working on the bill.

“We are meeting today and tomorrow to talk it all over and decide what we should do from here,” she said in an interview Tuesday.

Louisiana is the only state in the country that prevents IVF patients from disposing of embryos within its borders. As a result, three of the state’s four fertility clinics require their patients to store embryos outside the state, even though it drives up the cost of already expensive fertility treatments.

Some anti-abortion advocates consider embryos the equivalent of human life, which is why the ban on embryo destruction has been baked into Louisiana law since IVF became legal in the 1980s, said Ellie Schilling, a reproductive rights lawyer in New Orleans, in The Washington Post earlier this year. Disposal of embryos is also a common part of IVF treatment in all other states.

Patients produce embryos that aren’t viable, and some have many more embryos than they intend to use. Annual storage fees for keeping embryos frozen can reach several hundred dollars. Those who want to do away with their embryos or donate them to science have to place them outside of Louisiana first. 

Some people also feel more comfortable moving their embryos outside of the state to keep them out of the way of natural disasters that hit Louisiana, Bliss said.

The Washington Post reported in March that three of Louisiana’s fertility clinics require out-of-state storage for embryos in response to the state’s restrictive laws. The fourth clinic gives people the option of keeping their embryos in Louisiana, but it also encourages patients to look for out-of-state storage after two years.

The new restriction from the Senate appears aimed at preventing clinics from transferring embryos to out-of-state facilities under certain circumstances, but it might not be legal.

The legislation’s sponsor, Rep. Paula Davis, R-Baton Rouge, said last month that placing such restrictions into state law would be unconstitutional. 

“You can currently store your embryos out of state. You don’t put in a contract to destroy your embryos. You put in your contract to store your embryos out of state,” Davis said.

“We cannot go to another state and tell them what they can and cannot do,” she said.  

The Louisiana Family Forum, a conservative Christian advocacy organization, has pushed to block out-of-state embryo transfers for destruction since last month, in spite of opposing the broader legislation to protect IVF services.  

Sen. Alan Seabaugh, R-Shreveport, offered the amendment banning out-of-state embryo destruction after voting against the IVF proposal, House Bill 833, in committee last week.

Seabaugh appears to be preparing for a potential constitutional challenge. At the same time he added the ban on out-of-state embryo transfers for destruction, he also inserted a provision into the bill saying the rest of the IVF legislation should take effect, even if the courts throw out part of it.

IVF advocates have other concerns about the bill. Legislators have been unwilling to remove portions of existing state law that refer to embryos as “human beings.” Attorneys said this could lead to criminal charges for medical providers if embryos are accidentally lost.

Davis initially brought the bill with the purpose of shoring up protections for IVF services after an Alabama Supreme Court ruling temporarily shut down fertility clinics in that state. With the overturning of Roe v. Wade, states have more leeway to classify embryos and fetuses as unborn children in state law. 

Davis’ bill must return to the Louisiana House for approval before it heads to Gov. Jeff Landry’s desk for consideration.

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