Fact: Private equity is playing an increasingly large role in the fertility industry, with a 2022 study published by the National Institutes of Health (NIH) concluding that “fertility appears to be the medical specialty with the greatest market share owned by private equity.” Corporations also continue to acquire smaller fertility clinics and companies to create conglomerates. A separate 2022 study concluded “the offering of infertility services is rapidly evolving into large commercial entities threatening patient care and the future of teaching and research in reproductive medicine.” 

Fact: IVF and other fertility assistance remains extremely expensive, and insurance coverage is rare. A single round of IVF costs between $12,000 and $30,000, and on average, it costs more than $61,000 to achieve either a live birth or to determine that continued rounds are not likely to succeed. A 2022 study published by the National Institutes of Health (NIH) shows “practice revenues have been enhanced while patient costs have escalated, further limiting access to care especially in states with no or limited insurance coverage for infertility and IVF services.” 

Fact: New research from the Pew Research Center reveals Americans overwhelmingly support access to in vitro fertilization (IVF) with 70% of poll respondents saying access to IVF “is a good thing.” 

Fact: There is a serious lack of regulation in this industry that is leading to consumer harm. The primary consumer protection law governing IVF at the federal level is the Fertility Clinic Success Rate and Certification Act of 1992, which merely oversees one aspect of fertility companies’ work by requiring them to report their live birth success rates to the federal government. But there is no real legal consequence for those that don’t participate. At the state level, policies vary, but most states do not require fertility clinics to be accredited and inspected. A University of Washington School of Law article describes IVF providers as “operating in a largely unregulated environment in which cash is king and informed consent is optional.” 

Fact: Some clinics will turn down hopeful parents if they don’t meet a certain set of biographical criteria, seeking to keep their success rates as high as possible and increase their profits. 

Fact: There is a growing trend of failures across the industry as profits are prioritized over safety. As one example, two fertility centers in different parts of the country – the University Hospitals Ahuja Medical Center's Fertility Center in Cleveland and the Pacific Fertility Center in San Francisco – experienced malfunctions in their freezing tanks on the same weekend in March 2018. Since then, multiple large-scale failures have led to thousands of additional eggs and embryos being destroyed. There are common sense regulations and safety protocols that can be implemented to prevent these mass failures.  

Fact: In several instances, hopeful parents have had to seek out information regarding their eggs and embryos because the fertility company responsible for the failure was not communicating in any way. These companies also often fail to report the failures to the clinics and other companies they work with, leading to more confusion and more effort on the part of hopeful parents to receive important critical information and updates on the status of their eggs and embryos. 

Fact: Eggs and embryos are precious, irreplaceable, and invaluable genetic material. When avoidable failures occur due to a company’s negligence, there are legal paths forward to ensure some measure of justice.  

Fact: Protecting access to IVF and other fertility assistance is vital, but it cannot be done at the cost of harming hopeful parents by removing fertility companies’ liability when they are negligent. Hopeful parents deserve both access to fertility assistance and access to the civil justice system to pursue accountability against any fertility company that acts negligently and causes harm to their irreplaceable eggs and embryos.  

Fact: Courts do not need to find that embryos are persons to recognize hopeful parents’ claims, including claims for emotional distress damages. Courts have repeatedly recognized how precious and irreplaceable embryos are to the hopeful parents who entrust these fertility companies with their genetic material.   

Fact: Lawsuits brought on behalf of individuals whose eggs and embryos have been damaged or destroyed by fertility companies’ negligence are shining a light on the lack of commonsense safety protocols in the fertility industry. As one example, documents uncovered in litigation against Natera, a leading genetic testing company, reveal the company had no system to review inconclusive testing results in real time, had no standard operating procedures, and had dangerously high inconclusive results for at least three months before they took any action to correct the problem. A 2020 study published by NIH suggested “best practices in storage of frozen embryos should include not only improvements in hardware and monitoring of storage conditions of specimens but also setting standards for communications among patients, providers, and embryology laboratories regarding disposition of embryos.” 

Fact: Regulation is necessary and overdue in the fertility industry. But our nation’s courts are a major mechanism for regulation, allowing hopeful parents to file lawsuits against clinics, doctors, and manufacturers for damages when their invaluable genetic material is damaged or destroyed. When this litigation is successful, such as the $15 million jury verdict for five plaintiffs following Pacific Fertility Center’s tank failure, it sends a powerful message of accountability to the industry at large.