Lawsuit in Utah challenges mainstream IVF practices

When Kriss Martenson and his wife started Voice for the Voiceless in Utah in 2020, their mission to save unborn babies did not extend to in vitro fertilization. They started like many similar organizations across the country—standing outside Planned Parenthood and speaking with mothers considering abortion. “We had just a lot of rescues,” Martenson said. “But it doesn’t end there. You have to look at the laws.”

Martenson began learning more about IVF as he advocated for legislation to abolish abortion in Utah. The state does not protect babies until after 18 weeks of pregnancy, though Utah law recognizes unborn babies as humans with an inherent right to life from the moment of conception. For Martenson, that language made it clear he should fight not just for babies who were already in their mother’s wombs but also for those in petri dishes.

“I used to think, ‘We’ll try to end abortion in Utah, and then we’ll work on IVF,’” he said. “Now I think there’s no other way to do it than together.”

Now Martenson’s organization and an anonymous married woman who underwent IVF are suing seven IVF clinics in Utah for wrongful death of embryos. Though Martenson believes IVF is not ethical, the lawsuit doesn’t ask the court to stop the practice altogether. The plaintiffs want to apply the state’s existing protections for unborn babies to IVF to stop fertility clinics from creating more embryos than they plan to implant.

The Alabama Supreme Court ruled in February 2024 that human embryos outside of the womb are considered children and are protected under the state’s wrongful death law. In that case, a facility was held accountable when a hospital patient destroyed several embryos after entering the cryogenic nursery without permission.

The Alabama case had narrow implications, only applying to situations involving negligence. The state Legislature also passed bills to protect doctors and parents from facing liability for intentionally destroying embryos as part of the standard IVF process. But Martenson saw how existing state law could be used to clarify that embryos have the same rights as unborn babies. “I saw this window where I felt like we could use the court system and the judicial system,” he said.

Voice for the Voiceless’ April 30 lawsuit argues that Utah’s state laws recognize life as beginning at conception and protect all people’s rights “regardless of age, development, condition, or dependency, including all persons with a disability.” While the state makes some exceptions for abortion, Martenson says there are no formal exceptions for IVF that would strip embryos of their human rights. “[This lawsuit] is not to make new law, it’s to uphold the law that we already have on the books,” he said.

According to the plaintiffs, IVF clinics are violating state law by intentionally destroying their patients’ embryos that they do not plan to implant. “Standard practice of defendants is to dispose of, allow to die, fail to protect, and/or otherwise kill the embryos the clinic believes are not viable,” the lawsuit reads. According to the Reproductive Medicine Associates Network, only about 25% of embryos created in a typical IVF cycle are considered normal after genetic testing. Most doctors will only transfer those embryos.

The remaining embryos either die shortly after fertilization or are discarded if genetic testing shows that they may have chromosomal abnormalities. While some IVF clinics may recommend couples implant more than one healthy embryo at a time to maximize the success rate, most only choose to implant the embryo the doctor has determined to be the strongest. From there, patients may freeze their remaining embryos or discard those they do not plan to implant.

“I don’t think that there is an understanding of a lot of parents exactly how many they are discarding,” said Utah lawyer Frank Mylar, who is representing the plaintiffs. “Very few, if any, labs are really choosing ethics over expediency and cost savings.”

The number of embryos created per IVF cycle varies significantly from one couple to another, but the American Society for Reproductive Medicine estimates only about 50% of fertilized eggs develop enough to be implanted into a woman’s womb. More than 100,000 U.S. babies were born via IVF in 2024. Clinics also performed nearly 450,000 IVF treatment cycles that year, according to the group. The study only drew data from 364 fertility clinics, and clinics are not required to report how many embryos they create.

According to the lawsuit in Utah, the plaintiff identified as Jane Doe 1 said a clinic in the city of Providence attempted to fertilize 12 of her eggs. She claims the doctor told her that only two fertilized but that they were abnormal, and the clinic did not attempt to implant any into her womb. She says the clinic did not tell her what they did with the rest of her eggs or her embryos.

“She felt like there was not full consent,” Mylar said. “She is still not asking for money damages but wants the practice to stop.” The lawsuit asks the court to require clinics to practice IVF in a way that does not destroy or freeze embryos, a method often referred to as ethical IVF.

Mylar and Martenson said many couples pursue IVF because doctors haven’t exhausted all the other alternatives. They hope the case draws attention to more holistic forms of treatment that target root causes of infertility.

“Ultimately what I want is for Utah to have equal protections and for us to win,” Martenson said. “I think other states would be able to look at the wording in their legislation and be more specific for what human beings are and their human rights.”