Patience Sunne: HB 836 is a blank check for the fertility industry at the expense of children

With increased attention to the topic of IVF at the national level, the Pennsylvania legislature has recently joined the trend by taking up a bill that would ensure the Commonwealth “may not interfere” with assisted reproduction. This is broadly defined to include any procedure that involves the handling of eggs or embryos in a laboratory. This sweeping language of non-interference is dangerous and would harm the very people it claims to help, instead doing a favor to a multi-billion dollar industry that currently operates with almost no regulation in the U.S.

The cost of non-interference

Creating a law that says the state may not “interfere” with assisted reproduction closes the door to regulations that protect children, safeguard the best interests of patients and ensure transparency and accountability in the industry. It is already the case that out of 4.1 million embryos created per year, over four million are unaccounted for. Those embryos have either died during the IVF process, been discarded, weeded out as “unfit” based on their grade or PGT testing results, “donated” to science and destroyed, or left indefinitely in frozen storage. Enshrining into law state “non-interference” leaves Pennsylvanians no ability to know or protect the little lives created by the IVF industry.

Furthermore, recent scandals from the fertility industry highlight the vulnerability of IVF parents, especially when the industry is unregulated and unaccountable. Despite thousands of embryos being lost in storage tank failures, few clinics that use storage tanks are actually approved by the FDA for embryo storage. This could be addressed by regulation and oversight, but introducing language into Pennsylvania law that prevents “interference” with the industry could preclude future regulations that protect against storage tank failures.

The current legal framework gives IVF parents little to no opportunity for recourse when a clinic negligently causes the death of their embryos or accidentally “swaps” their embryo with someone else’s, or kidnaps them. Attempts to update the framework to protect parents and their embryonic children in cases of clinic negligence would be prevented by this legislation.

How HB 836 greenlights eugenics and abuse

Silicon Valley has recently shown an interest in ART, with startups like Orchid and Nucleus promoting their services as a way to “optimize” offspring and “have your best baby.” Many of these couples aren’t dealing with infertility. They just want a smart, tall, genetically fit child. This trend is accompanied by tech executives using ART to father dozens of children. Fertility clinics in the U.S. that offer expensive add-ons allowing couples to pick embryos based on their likelihood of having a particular hair or eye color have created an international fertility tourism industry. While people may have a positive view of IVF when used for the couple next door struggling with infertility, they are considerably less likely to embrace it when tech executives and foreign nationals create dozens of designer offspring (and in the process, discard or abandon any embryos that did not fit their specifications.)

Under HB 836, as long as a medical provider signs off on these add-ons as “medically necessary,” the state would be powerless against these eugenic practices. HB 836 opens the door to ART becoming the tool of the wealthy to create “optimized” offspring without any opportunity to stop the eugenic practices involved.  

How HB 836 harms children

HB 836 does not specify that ART be reserved for cases of infertility, nor does it specify that it be reserved for married couples. That means any adult who wants access to a child will get one. Even if it means the child will be intentionally motherless or fatherless, mass produced, acquired by a predator, raised by a retiree, or shipped overseas. As such, it opens the door to ART on demand for anyone who wants it—the best interest of the child be damned. 

Unregulated ART should be understood as the polar opposite of the institution of adoption, where the best interest of the child is preeminent, open adoptions are standard, siblings groups are kept together whenever possible, money never goes from intended parents to birth/genetic parents, and prospective parents are heavily vetted. It is a child-centric process from beginning to end.

Not so with ART where the best interest of the child is never mentioned in contracts, anonymous gametes are often preferred, children may have dozens or hundreds of half siblings they never know, and biological mothers and fathers are directly paid to relinquish their parental rights. Recipient parents are not screened or fingerprinted, which has already resulted in predators acquiring infants.

Children deserve protection. This bill victimizes them. And leaves intended parents with no recourse when the fertility industry elevates their bottom line above the humans they purport to serve.

Patience Sunne is the Engagement Director at Them Before Us, a nonprofit dedicated to defending children’s rights. She lives in Iowa with her husband.