Preparing for an IVF or surrogacy journey means that you may need legal help, as embryo laws vary by state. Finding the right help can mean a quicker and smoother journey to parenthood.
You can read more about the legal process of surrogacy here. You can also get help now from a surrogacy specialist who can connect you to legal help in your area.
Embryo Laws by State
Alabama Embryo Laws
A recent hearing in February 2024, Alabama focused on the legal status of frozen embryos following a ruling by the state's Supreme Court. The court determined that frozen embryos could be considered children under the law, allowing parents to file wrongful death lawsuits if embryos are destroyed.
This ruling has raised concerns about the future of in vitro fertilization (IVF) in Alabama, leading some fertility clinics to pause services due to potential legal liabilities. The decision could have significant implications for how IVF treatments are managed in the state.
Alaska Embryo Laws
Alaska does not have specific laws that directly regulate embryo donation, adoption or the disposition of embryos, but certain legal principles related to assisted reproduction and family law may apply.
In February of 2024, Representative McCabe introduced HB 107 that would add legal definitions of “person” and “life” to the criminal code to incorporate fetuses, embryo and fertilized eggs. If passed, this could create tension for IVF patients and providers.
Arizona Embryo Laws
Arizona is unique in that it has specific legislation addressing what happens to frozen embryos during a divorce. In 2018, Arizona passed the “Parental Right to Embryo” law that governs how embryo custody is decided in the event of a divorce. The law states:
- The embryos are awarded to the spouse who intends to develop the embryos to birth
- If both spouses intend to develop the embryo to birth, a decision must be reached in accordance with what will provide the best chance for the embryo to develop to birth.
- If both spouses wish to develop the embryo to birth but only one provided gametes, the embryos are awarded to the spouse whose gametes were utilized.
Arkansas Embryo Laws
In January 2023, HB1174 was introduced and would have added protections for “unborn children” by allowing persecution when a person intentionally causes the death of an unborn child. The bill amended the definition of “person” to include an unborn child at any stage of development, rather than just in utero, and the definition of unborn child to mean human offspring from fertilization until birth, rather than conception.
The bill failed in May 2023.
California Embryo Laws
Embryos as Property: In California, embryos do not have the same legal status as persons but are considered property with special considerations. The state's courts treat embryos in a way that respects the rights of both parties involved, particularly in cases of disputes between couples.
Custody of Embryos: In cases of divorce or separation, custody disputes over embryos are addressed through contracts signed at fertility clinics. The courts usually follow these agreements, determining what happens to the embryos—whether they are destroyed, donated, or used for implantation. If there is no clear agreement, the court will decide based on the wishes of both parties.
Embryo Adoption: In 2021, California passed AB-2495 which ensures that embryo donors are never considered the legal parents of the embryo.
Colorado Embryo Laws
Embryos do not have personhood: Colorado does not recognize embryo personhood, allowing for flexible IVF and storage practices. In 2022, Colorado passed the Reproductive Equity Act, which states that a fertilized egg, fetus or embryo does not have rights under Colorado state laws.
IVF insurance: The Colorado Building Families Act provides insurance coverage for unlimited embryo transfers.
Connecticut Embryo Laws
There are no specific laws pertaining to embryos in Connecticut, but there is one statute regarding custody of frozen embryos.
In Jessica Bilbao v. Timothy R Goodwin, an agreement signed at the time of IVF determined the couple would dispose of their embryos in the event of divorce. When divorce occurred, the Plaintiff wanted to continue forward with the agreement and the Defendant wanted to keep the embryos in case they reconciled or donate them to another IVF couple.
The court considered the interests of both parties, and since the Defendant was capable of having children by other means, the agreement was upheld.
Delaware Embryo Laws
There are no laws pertaining to embryo personhood, donation or custody at this time.
Florida Embryo Laws
Embryo custody laws: Couples pursuing IVF must enter a written contract that decides embryo disposition arrangements in the event of a divorce or death.
If there is no written agreement, the couple must decide how the embryos will be handled.
If there is no agreement and one partner dies, the surviving partner will decide how the embryos are handled.
Georgia Embryo Laws
Personhood laws: Under GA Code § 1-2-1, a natural person includes an unborn child. “Unborn child” is defined as a Homo sapien at any stage of development in the womb.
Embryo Adoption Laws: In 2009, Georgia became the first state to have an embryo adoption law under the Option of Adoption Act. This allows recipients of donor embryos to file for an order of adoption, which terminates parental rights of the donor and grants these rights unto the intended parents. It is an option, not a requirement.
Hawaii Embryo Laws
There are no laws pertaining to embryo personhood, donation or custody at this time.
Idaho Embryo Laws
Embryo Research Laws: In March 2022, HB737 was introduced. This bill states that embryos created through IVF shall not be used for research purposes.
Embryo as Potential for Life: Under Idaho state law, an embryo is defined as any human in utero.
Illinois Embryo Laws
Illinois recognizes embryos in assisted reproduction but does not grant them personhood. Under the Reproductive Health Act, a fertilized egg, embryo or fetus does not have rights under Illinois state law.
Indiana Embryo Laws
Indiana does not have comprehensive laws specifically governing embryos, but certain legal principles and existing statutes apply to issues like custody disputes.
Indiana courts typically follow agreements made between couples regarding the disposition of embryos. If there is no clear agreement in cases of divorce or separation, the court may be called upon to decide the fate of the embryos.
Iowa Embryo Laws
In March of 2024, Iowa republicans passed a law in the house that would criminalize those who cause the death of an “unborn person.” The bill defines “unborn person” as any homo sapien from fertilization to live birth. The bill has been put on hold after the senate declined to consider the bill.
Kansas Embryo Laws
Embryos as people: Kan. Stat. Ann. § 65-6732 states that life begins at fertilization and unborn children have the same rights as other residents of the state under state law.
Kentucky Embryo Laws
Embryos as people: Human Life Protection Act, Ky. Rev. Stat. §§ 311.772 prohibits the termination of life of an unborn human being. “Unborn human being” is defined as a homo sapien through the embryonic and fetal stages of the unborn child from fertilization to birth. "Fertilization“ is defined as the “point in time when a male human sperm penetrates the zona pellucida of a female human ovum.”
Louisiana Embryo Laws
IVF embryos as people: Louisiana recognizes IVF embryos as judicial persons, significantly impacting IVF. This prohibits the intentional destruction of embryos under state law.
Embryo adoption: Embryos of IVF patients can be donated to another married couple.
Maine Embryo Laws
There are no laws pertaining to embryo personhood, donation or custody at this time.
Maryland Embryo Laws
The court case Jocelyn P. v. Joshua P. involved a Maryland couple who, after undergoing IVF, created several embryos. Following their divorce, they disagreed on what to do with one remaining pre-embryo. Jocelyn wanted to implant the embryo to have another child, while Joshua sought to have it destroyed.
Initially, a lower court ruled in favor of Joshua, but the Maryland Court of Special Appeals overturned this decision. The appellate court ruled that an earlier oral agreement between the couple, in which they agreed to give each embryo a chance at life, should be honored. This decision allowed Jocelyn to retain the embryo for possible future use.
This case is significant as it sets a precedent for handling disputes over embryos in divorce cases. The court emphasized the importance of prior agreements between the parties and balanced interests when such agreements are unclear.
Massachusetts Embryo Laws
Massachusetts does not grant personhood to embryos, allowing for flexible IVF practices. Storage regulations exist, and embryo donation is legal with consent. There are few significant legal cases affecting embryo laws.
Michigan Embryo Laws
Embryo research laws: Mich. Comp. Laws § 333.2685 prohibits the use of human embryos for nontherapeutic research. Nontherapeutic research refers to research done to advance scientific knowledge, with no benefits to the recipients.
Minnesota Embryo Laws
Minnesota does not grant personhood to embryos, allowing for flexible IVF practices. Storage laws protect embryos, and embryo donation is legal with consent. The case Minnesota v. Planned Parenthood influenced legal frameworks regarding embryos.
Mississippi Embryo Laws
Embryo adoption laws: The "Mississippi Human Embryo Adoption Act" seeks to legally classify frozen embryos as children under Mississippi's adoption laws. It establishes the process of embryo adoption, requiring genetic parents to relinquish their rights before implantation.
The law aims to clarify parental rights, promote the best interests of the child, and ensure legal consistency for both genetic and adoptive parents. It also mandates court jurisdiction and adoption procedures for embryos and prohibits legal challenges to adoptions after embryo implantation.
The Act took effect on July 1, 2012.
Missouri Embryo Laws
Embryo custody laws: In August 2024, Missouri passed SB 1145. This act sets guidelines for courts to follow in deciding custody disputes involving in vitro human embryos. The court will presume that the best interest of the embryo is to grant custody to either the egg or sperm donor who plans to bring the embryo to birth.
The court aims to resolve disputes in a way that maximizes the embryo's chance of development. It also allows certain parties to intervene and upholds agreements about parental rights, as long as they do not conflict with public policy.
Embryos are granted personhood: Section 1.205 establishes that life begins at conception and that unborn children have protectable interests in life, health and well-being. It affirms that natural parents also have these protectable interests regarding their unborn child.
As of January 1, 1988, state laws recognize the rights and privileges of unborn children from conception to birth, subject to U.S. Constitutional interpretations. The term "unborn child" includes all offspring from conception to birth. However, the law does not create a legal cause of action against a woman for not following prenatal care recommendations.
Montana Embryo Laws
Montana does not confer personhood on embryos, allowing for flexible IVF and storage practices. Embryo donation is legal with consent. There are few notable legal precedents regarding embryos.
Nebraska Embryo Laws
Embryos are considered unborn children: The Pain-Capable Unborn Child Protection Act defines several key terms related to abortion including unborn child and fertilization:
- Unborn child or fetus: An individual of the human species from fertilization to birth.
- Fertilization: The fusion of a human sperm with a human egg.
Nevada Embryo Laws
Nevada does not grant personhood to embryos, allowing for flexible IVF practices. Storage regulations exist, and embryo donation is legal with consent. There are few significant legal cases affecting embryo laws.
New Hampshire Embryo Laws
New Hampshire does not confer personhood to embryos, allowing flexibility in IVF and embryo donation. Storage practices are regulated, but notable cases are minimal.
New Jersey Embryo Laws
Embryo disposition: Under New Jersey’s Parentage Act, a couple must enter into an agreement where they establish their embryo disposition protocol before beginning IVF.
In New Jersey, embryos created through IVF are considered property and are therefore regulated by property law. This means couples can make agreements about the use and disposition of embryo in the event of a divorce. This was established in a New Jersey Supreme Court case, JB v MB
New Mexico Embryo Laws
New Mexico does not grant personhood to embryos. IVF and storage are regulated, and embryo donation is legal. There are few significant legal precedents affecting embryo laws.
New York Embryo Laws
Embryos are not granted personhood: 2023-S8682 states that any fertilized human ovum or embryo outside the uterus is not legally recognized as an unborn child, minor child, natural person or any equivalent term under state law.
North Carolina Embryo Laws
There are no laws specific to disposition, custody or adoption.
North Dakota Embryo Laws
There are no laws specific to disposition, custody or adoption.
Ohio Embryo Laws
In this Penniman v. Univ. Hosp. Health System, Wendy and Rick Penniman sued University Hospitals Health System after a freezer malfunction destroyed their cryogenically preserved embryos. They sought a declaratory judgment to recognize embryos as persons under Ohio law, aiming to pursue a wrongful death claim.
The trial court dismissed their claim, stating that Ohio law does not recognize pre-implanted embryos as persons. The Pennimans appealed, but the appellate court upheld the dismissal, affirming that embryos outside the uterus do not have the rights and protections of a person under Ohio law.
Oklahoma Embryo Laws
There are no laws specific to disposition, custody or adoption.
Oregon Embryo Laws
ORS 109.239 defines "assisted reproduction" as methods of causing pregnancy other than sexual intercourse, including artificial insemination, egg and embryo donation, in vitro fertilization, and intracytoplasmic sperm injection.
It specifies that if the donor of gametes used in assisted reproduction is not the mother's spouse, the donor has no rights, obligations, or interest in any resulting child, and the child has no rights or obligations toward the donor.
Pennsylvania Embryo Laws
Pennsylvania recognizes embryos in assisted reproduction but does not grant them personhood. IVF practices are regulated, and embryo donation is allowed.
Rhode Island Embryo Laws
There are no laws specific to disposition, custody or adoption.
South Carolina Embryo Laws
South Dakota Embryo Laws
Embryos are unborn children: South Dakota defines “unborn child” as a homo sapien from fertilization until birth.
SL 2000, ch 169, §1. prohibits certain actions involving human embryos. It makes it a Class 1 misdemeanor to:
- Conduct nontherapeutic research that destroys a human embryo.
- Conduct nontherapeutic research that puts an embryo at significant risk of injury or death.
- Sell or transfer embryos knowing they will be used for such research.
- Use cells or tissues obtained from embryos involved in prohibited activities for research.
"Nontherapeutic research" is defined as research not aimed at preserving the life or health of the embryo, excluding procedures like in vitro fertilization and diagnostic tests for future care.
Tennessee Embryo Laws
Embryos are unborn children: Under Tenn. Code § 39-15-213 Tennessee defines “unborn child” as an individual living member of the species, homo sapiens, throughout the entire embryonic and fetal stages of the unborn child from fertilization until birth.
“Fertilization” is defined as the point in time when a male human sperm penetrates the zona pellucida of a female human ovum;
Texas Embryo Laws
Embryos are unborn children: The Texas Human Life Protection Act defines embryos as “unborn children” starting at fertilization through all embryonic stages.
In Antoun v. Antoun, Caroline Michelle Antoun (wife) and Gaby Elias Antoun (husband) underwent IVF treatment during their marriage and cryogenically preserved three viable embryos. In their agreement with the IVF clinic, they had stated that in the event of divorce, the embryos would be under the husband’s control.
When the couple divorced, the trial court followed the agreement and awarded the embryos to the husband. The wife contested the decision, citing the recent Dobbs ruling and Texas laws defining "unborn children" as beginning at fertilization. She argued that the embryos should be treated as "unborn children" rather than property, and claimed her rights as a parent were being terminated without due process.
The court rejected the wife’s arguments, ruling that frozen embryos are not considered "unborn children" under Texas law and upheld the couple's contract with the IVF clinic. The court affirmed the trial court’s decision to award the embryos to the husband, treating the embryos as property subject to their contractual agreement.
Utah Embryo Laws
Personhood of embryos is undefined: The Utah Legislature, through 76-7-301.1, reaffirms the state's commitment to protecting the inherent and inalienable rights of unborn children, as outlined in the Utah Constitution. The state recognizes a compelling interest in safeguarding the lives of unborn children.
Vermont Embryo Laws
Vermont does not grant personhood to embryos. IVF practices are flexible, and embryo donation is legal. There are few notable legal cases affecting embryo laws.
Virginia Embryo Laws
In a Virginia legal case, Fairfax County Circuit Court Judge Richard Gardiner ruled that frozen human embryos could be considered property or "chattel" under certain circumstances. This ruling came in a dispute between divorced couple Honeyhline and Jason Heidemann over two frozen embryos.
After historical review of a 19th-century law related to the treatment of slaves, Gardiner reconsidered and concluded that embryos could be considered "goods or chattels" since there was no law explicitly prohibiting the sale of embryos.
The ruling, which has drawn criticism, especially for invoking historical references to slavery, is not final.
Washington Embryo Laws
Washington does not confer personhood on embryos. IVF practices are flexible, and embryo donation is legal.
West Virginia Embryo Laws
West Virginia recognizes embryos as potential life, impacting IVF and storage practices. Embryo donation is legal with consent.
Wisconsin Embryo Laws
Wisconsin recognizes embryos but does not grant them personhood. IVF practices are regulated, and embryo donation is allowed with consent.
Wyoming Embryo Laws
Wyoming does not recognize embryo personhood unless the embryo is in the womb, allowing for flexible IVF and storage practices. Embryo donation is legal. There are few notable legal cases affecting embryo laws.
How to Get Help with Embryo Laws in Your State
No matter what state you are in, you can connect with IVF clinics to create an embryo and get help navigating the legal surrogacy process when you fill out this simple form.
If you have embryos ready, you can connect with a surrogate in an average of 1 - 6 months.
Frequently Asked Questions
What states banned IVF?
No states have banned IVF, but several states have laws and legal standards that make IVF more difficult legally. This includes states like Missouri, Alabama, Arizona, and West Virginia.
Do frozen embryos have rights?
The legal definition of embryos varies, which means that in some states they are considered property, in some states they are considered persons, and some states define embryos as potential life. Each legal definition comes with its own set of restrictions that is determined by state laws.
Why did Alabama stop IVF?
Many Alabama IVF clinics paused or ended services due to a legal ruling that defined embryos as children and opened up litigation concerns for IVF clinics and hospitals, which could be sued for wrongful death.
Is embryo research legal in the US?
Yes, research is allowed on embryonic stem cells on a federal level, but there are restrictions in place that vary from state to state.