March 2023 Update
A ban has been enacted on in-state abortion care. The import of these bans for the practice of reproductive medicine and, specifically, the use of Assisted Reproductive Technology (ART) to build families, varies on a state-by-state level. While the majority of states’ abortion ban statutes are applicable in the context of a pregnancy, many state laws also include definitions stating that “personhood” begins at fertilization or even conception. Such definitions -- whether intentionally or not -- have the potential to implicate and even ban the use of ART, including in vitro fertilization (IVF), though some states have taken steps to carve this out as allowable. In a growing number of states, statutory restrictions severely limit access to abortion care and implicitly threaten the unhindered practice of reproductive medicine.
Taxes, religious freedom, and additional out-of-the-box proposals
Abortion choice proponents in Kentucky have challenged the states’ laws on grounds that they violate individuals’ religious freedom. Anti-abortion advocates, in response, also hold up religious freedom as a plausible defense to being required to perform or otherwise facilitate the procedure. The rulings in these cases, all of which remain outstanding at time of publication, will set important precedent.
as of July 2022
Trigger Law Statutory Cite(s)
Does this law have a potential impact on IVF/Reproductive medicine?
Why or why not?
- Seemingly no impact on IVF or other ART procedures.
- The definitions of “fertilization” and “unborn human being” could theoretically apply to the process of creating in vitro embryos, but the law only criminalizes activities performed upon a pregnant woman with the specific intent of causing or abetting the termination.
- As written, the law would not directly impact IVF and reproductive medicine.
Does this law explicitly reference IVF, assisted reproductive technology or reproductive medicine?
There are no explicit references to IVF or reproductive medicine services.
Are there any penalties in this law that could apply to ART procedures?
- “Fertilization” means the point in time when a male sperm penetrates the zona pellucida of a female human ovum.
- “Pregnant” means the human female reproductive condition of having a living unborn human being within her body throughout the entire embryonic and fetal stages of the unborn child from fertilization to full gestation and childbirth.
- “Unborn human being” means an individual living member of the species homo sapiens throughout the entire embryonic and fetal stages of the unborn child from fertilization to full gestation and childbirth.
Do the definitions/terms of the trigger law apply to other areas of state code?
What is the “trigger” for this law to take effect?
The trigger law takes effect upon:
- Any decision which reverses, in whole or in part, Roe v. Wade, “thereby restoring” to the state the “authority to prohibit abortion”.
- Adoption of an amendment to the U.S. Constitution which, in whole or in part, gives Kentucky the “authority to prohibit abortion”.
Key provisions: What does the law prohibit and when does it apply?
- No person may knowingly administer to, prescribe for, procure for, or sell to any pregnant woman any medicine, drug, or other substance with the intent of causing or abetting the termination of the life of an unborn human.
- No person may knowingly use or employ any instrument or procedure upon a pregnant woman with the specific intent of causing or abetting the termination of the life of an unborn human.
- A procedure necessary in reasonable medical judgment to prevent the death or substantial risk of death due to a physical condition, or to prevent the serious permanent impairment of a life-sustaining organ of a pregnant woman. The physician must make a reasonable medical effort under the circumstances to preserve the life of the mother and life of the unborn human being consistent with reasonable medical practice.
- Medical treatment provided to a mother which results in the accidental or unintentional injury or death to the unborn human being.
- The law shall not be construed to subject the pregnant woman to any criminal conviction or penalty.
- The law does not prohibit the sale, use, prescription, or administration of a contraceptive if it is administered prior to a time when a pregnancy could be determined through conventional medical testing.