The Data Dearth on the Hazards of IVF

By: Chuck Donovan, originally published March 27, 2025, The Washington Stand

The clock ticks on at the White House Domestic Policy Council (DPC), charged with coming up with a national policy to support in vitro fertilization (IVF) by sometime this May. IVF has, in general, broad public support, but the sub-issues in the largely unregulated industry are numerous, and polling on them is scant.

It is not just that public knowledge of these issues, like genetic screening, sex selection, maternal health impacts, the freezing of large numbers of embryos, and regarding them as property rather than fellow human beings, is limited, it is that the industry has proceeded without regulation and with, as in so many other areas of reproductive technology and policy, very sparse data collection. The DPC has the steep task of making headway with an information base that is wholly inadequate to the task.

A new report from NBC News spells out one dimension of the data dearth: the volume of tort litigation by patients against fertility clinics and related companies. Acknowledging the many reasons why major issues occur with the practice of IVF, the report describes the wide range of problems individuals and couples have faced.

One woman, after a grueling regimen of injections and blood draws, finally conceived a child she thought was from the sperm of her chosen donor. She carried the child to term when the baby’s skin color at birth conveyed the news that the fertility clinic had transferred another couple’s embryo. She raised the child for five months, and then a court ordered her to hand over the baby to the couple. The woman was “heartbroken.”

Another round of cases involved a class action suit against a fertility clinic and storage company over a failed cryopreservation unit. When the unit failed, some 1,500 embryos and 2,500 eggs were destroyed, leading to 176 lawsuits against Pacific Fertility Center and its parent company, Prelude Fertility. Chart Industries, Inc., the maker of the tank, denied its storage tank was faulty. In a separate case, a couple seeking IVF services were elated when the process of harvesting and fertilizing their eggs and sperm resulted in 16 human embryos. Somehow all 16 were erroneously discarded by the fertility lab. The mother described herself as “inconsolable.”

NBC’s review found more than 300 lawsuits over lost, destroyed, or accidentally swapped embryos from 2019-2024. Eighty-two of the lawsuits involved human error in which eggs or embryos were destroyed. Thirteen of the suits involved swapped embryos ending up in the wrong woman. More than 50 other suits involved charges regarding the use of a liquid intended to foster embryonic development that instead destroyed hundreds of them. NBC underscores time and again how likely it is that these incidents represent only a small percentage of the cases of gross error and abuse in the fertility industry due to the lack of reporting requirements.

The knowledge gap is not confined to IVF procedures but to nearly all fertility-related and childbearing practices in the United States: the lack of reporting requirements at the state and federal level, leading to the lack of effective regulation for either patient or embryo protection. As the article underscores:

“IVF isn’t governed by the same regulations that hold other medical practitioners accountable for mistakes or safety violations, three legal experts said. For example, although more than half of the states require hospitals to report serious, avoidable medical errors to regulators, those requirements don’t apply to IVF clinics. And embryology labs aren’t subject to federal inspections the way, say, blood banks are — instead, most are inspected by accreditation organizations.” 

Then there’s the weighty set of questions surrounding disputes between members of a couple, often after divorce or relationship breakdown, about the disposition of embryos they have created together and have in storage. The well-known dispute between actors Sofia Vergara and Nick Loeb, who wanted to retrieve embryos he had co-created with Vergara, lasted for nearly a decade as courts wrestled with the conflicting desires of the parents, leading to a conclusion that the embryos would remain in suspended animation.

The core question devolves into whether human embryos — clearly distinct individuals as the case of little Noah Markham, rescued after Hurricane Katrina shows — are beings with a right to life and interests to be served in litigation, or are mere property available for commercial transaction, lab experiments, or indefinite storage. Efforts by right-to-life medical groups like the American Association of Pro-Life Obstetricians and Gynecologists to resolve these cases under family law rather than property law have so far been largely unavailing.

The primary IVF clinic membership organization in the United States is the Society for Assisted Reproductive Technology (SART), whose website reports that as of 2018 some 86% of all U.S. IVF clinics were members. SART is an arm of the American Society for Reproductive Medicine (ASRM), which is dedicated to providing standards, ethics guidelines, and other guidance to the assisted reproduction technology community. While the unifying theme of the SART clinics is overcoming infertility, the SART website features images of three couples, two of whom are same-sex couples whose fertility status is biological rather than clinical. ASRM replied to the NBC News story insisting that fertility clinics are regulated in the same manner as other medical practices in the United States and that lawsuits are an “important component” of that. ASRM guidelines are voluntary but cover the responsibility of doctors to disclose errors to patients.

IVF clearly involves much more than actual infertility in a male or female partner, and reliance on IVF is the result of multiple forces in society that are overdue for attention. The number of babies born in the United States via IVF processes quadrupled between 1996 and 2022. The number is likely to increase further so long as underlying factors remain unaddressed and if the industry moves from being merely an unregulated option to a fully insured or publicly subsidized one, as President Trump’s executive order suggests it should.

Human reproduction is not generally understood as an investment opportunity, but a “Fertility Sector Brief” created last year by the global investment bank Harris Williams states it starkly. The firm says, “Investors are highly interested in the fertility services due to its robust tailwinds, large size, and compelling growth opportunities.” Federal and state protection from regulation and legal immunity for “errors” in creating, screening, protecting, or transferring embryos would be just as considerable a boon for the industry as immunity was in recent vaccine manufacture.

Mandating insurance coverage or public funding of IVF in the bottom-line interest of making “more babies” is an important issue, but there is much more to the IVF debate than helping infertile couples or, as some would have it, boosting a globally sinking birth rate. The “quality” issues alone, of preselecting allegedly genetically superior babies or choosing a preferred sex, present immense questions for the future of society. The best depiction of the latter dilemmas remains the 1997 film “Gattaca,” which lays out a future in which genetics establishes rigid barriers to opportunity and a strict hierarchy of humanity. The 2014 sci-fi movie Interstellar has a less elaborate but still arresting depiction of the use of frozen embryos in a galactic drama about the saving of humanity on a dying planet.

The breadth of these issues and their implication for all of humanity should not be lost on the team at the DPC charged with crafting new U.S. policy. In addition to the U.S. experience, it should by all accounts review the practices and outcomes overseas where, as with abortion, many countries observe far more conservative, life-protective policies than does the United States, where surrogacy tourism is the source of many troubling headlines. The DPC includes the president, the vice president, Cabinet secretaries, and 20-30 professional staff. It encompasses a vast array of issues from education and housing to health, transportation, the environment, and many more. Given the pace of action in the new administration, it is assuredly taxed to the max.

With this reality and the novelty and complexity of IVF, compounded by the lack of data at the national and clinical level, the 90-day timetable imposed by the executive order represents a dubious approach to this generation-altering issue. As an alternative, the DPC would be wise to recommend a thorough, wide-ranging, and public examination of all the issues raised not just by IVF but by unprecedented trends in infertility, marriage, demographics, and other phenomena for which IVF, even aggressively pursued, is manifestly not the answer. A properly structured commission committed to gathering facts and studying the topic in depth, as did the President’s Council on Bioethics from 2001-2009, would be far preferable.

Americans are a compassionate people, but before we embark on a path that would entangle taxpayers in programs that destroy far more fellow human beings than we save, it would be wise to pause and consider the universal values at stake.

Chuck Donovan is strategic adviser at the Charlotte Lozier Institute. He is the founder and was president of the Charlotte Lozier Institute from 2011 to 2024, the research and education arm of Susan B. Anthony Pro-Life America.