“The Right to Build Families Act”, introduced into the US Senate late last year, has flown under the radar but it promises to spark bioethical debates in 2023.

The legislation is intended to protect providers of assisted reproduction technologies and their clients in the wake of Dobbs, the US Supreme Court decision which overturned Roe v. Wade. IVF clinics are worried that anti-abortion states could try to restrict IVF as well.

“With Roe v. Wade thrown out by the Supreme Court, many women and families are understandably worried about their access to healthcare and their ability to do their own family planning. Right now, we’re seeing within the anti-choice community a plot to push for new, more radical policies like the so-called ‘personhood bills’ that would go even further toward controlling [people’s] bodies. These efforts could effectively ban fertility treatments like IVF that many Americans need to start or grow their families,” the bill’s co-sponsor, Senator Tammy Duckworth, told Parents magazine. She has two IVF daughters.

The main provisions of the act are to:

• ban preventing access to ART or an individual’s right to retain reproductive genetic materials like gametes (sex cells, or eggs and sperm).
• protect for healthcare providers who provide patients with access to ART and counselling and information on it.
• create a private right of action for people and healthcare providers living and working in states that have placed limits on access to ART.
• permit the Department of Justice to pursue civil action against states in violation of the act.

Emma Waters, of the DeVos Center for Life, Religion, and Family at The Heritage Foundation, looked under the hood of the legislation. She believes that it will permit commercial surrogacy and could make IVF even less regulated than it already is. It turns a blind eye to the complex emotional issues surrounding couples’ desire for children.

But fundamentally, she points out, Senator Duckworth is wrong to assert that: “The choice to build a family is a fundamental right for all Americans.” This implies that parents have a right to a child. “A child, whose life begins at conception, is not a mere object to design, buy, or sell to fulfill an adult’s wishes.”

The legislation is strongly supported by the IVF industry. Its peak body, the American Society for Reproductive Medicine, declared in a press release:

“Every American seeking to exercise their fundamental right to family building should have unhindered access to assisted reproductive technologies, regardless of zip code, employment status, a decision to become a solo parent, and who they love.”