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How Will Iowa’s 2023 Ban on Fetal Heartbeat Abortion Law Affect Surrogacy and Assisted Reproductive

On July 11, 2023, the Iowa legislature passed a ban on abortions after detection of a fetal heartbeat. Under the new law, abortions are banned for pregnancies in which a fetal heartbeat can be detected. Fetal heartbeat refers to the contractions of the gestational sac that begin at roughly six weeks of gestation. Medically, these contractions are not heartbeats, but they are referred to as heartbeats under Iowa law. With the passage of this law, many people are asking—what will happen to Assisted Reproductive Technologies (also called ART)?

How the Law Affects IVF in Iowa

In-vitro fertilization creates embryos through fertilization of an egg in a laboratory. Under the Iowa law, an unborn child is defined as an ‘individual organism of the species homo sapiens from fertilization until live birth. The consequences of this law on disposition of embryos are unclear. However, thawing of embryos is not an abortion, since Iowa law requires that the embryo be implanted for its termination to be an abortion.

At least one legislator recognized that the law was unclear. Senator Sarah Trone Garriott introduced an amendment, S-3242, which would have prevented the law from regulating or prevent IVF treatment in Iowa. The amendment was rejected as “not germane,” meaning it was considered irrelevant to the bill. While it is unfortunate that this amendment was not adopted, it also indicates that the legislature did not intend to ban IVF. For now, Iowa law does not restrict ART, but it does not protect it, either.

How the Law Affects Surrogacy in Iowa

Surrogate pregnancies will be affected by this new law. Intended parents and surrogates often discuss difficult circumstances that may arise during a pregnancy and when abortion may be the right decision, such as to save the life of the gestational surrogate or to prevent suffering of an unborn child who would not be born alive without severe pain and suffering. Usually, for example, intended parents and surrogates agree that an abortion is the best option when the fetus has a congenital disorder that will substantially shorten or impair its quality of life. As you can imagine, intended parents and surrogates enter into their arrangements for the purpose of bringing a child to the world, and they view a termination of pregnancy as only the last resort in an extremely difficult situation. The new law has no exception for this situation, and the surrogate would not be able to terminate the pregnancy in Iowa. This would make a tragic situation even more difficult for all involved.

The new law allows exceptions up until 20 weeks for medical emergencies that endanger the life of the pregnant woman, fatal fetal abnormalities, rape, and incest. For the exception to apply, a rape must be reported to law enforcement or to a public health agency or doctor within forty-five days. The exception for incest, it must be reported to law enforcement, a public health agency, or doctor within 140 days. Neither of these exceptions would be applicable in the case of surrogacy. The remaining exceptions, however, could conceivably arise in a surrogate pregnancy. In the case of a fetal abnormality, the exception could be available if “the attending physician certifies that the fetus has a fetal abnormality that in the physician’s reasonable medical judgment is incompatible with life.” In addition, if the gestational surrogate has experienced a miscarriage, but “not all of the products of conception are expelled,” then a physician may remove the remaining ‘products.’ Finally, medical emergency is defined as "a situation in which an abortion is performed to preserve the life of the pregnant woman whose life is endangered by a physical disorder, physical illness or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy" or when continuing the pregnancy "will create a serious risk of substantial and irreversible impairment of a major bodily function of the pregnant woman." This is not available if the medical emergency involves psychological, emotional, familial conditions, or maternal age. However, many doctors have spoken up to criticize the legislation for lack of clarity, which would prevent physicians from taking actions to save a pregnant woman’s life in time.

The right to abortion exists in some other states, like Minnesota. The United States Constitution protects a person’s right to travel between states freely. If an abortion was deemed necessary by an intended parent and a surrogate, the surrogate could travel to another state to receive an abortion. Unlike some other states, at this time, the Iowa legislature has not passed any bills that could limit the right of a pregnant woman to receive care in another state.

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