Don’t confuse abortion and IVF: Fetal personhood raises different questions
Re: “A post-Roe crisis: Fetal personhood laws threaten Jewish religious freedom,” by Elana Frank and Allison Tombros Korman, AJC.
In post-Dobbs America, abortion remains one of the most contested issues. For Jewish communities, the stakes are especially high. In some tragic situations, Jewish law requires terminating a pregnancy to save the mother or prevent serious harm. A law that prohibits such abortions forces Jews to choose between faith and law — a direct and compelling religious-freedom claim.
Recently, this concern has been linked to worries about in vitro fertilization (IVF), as over a dozen states have adopted “fetal personhood” laws defining life as beginning at conception. Critics fear these laws could not only criminalize abortion but restrict fertility treatments by treating frozen embryos as persons. This happened in Alabama after the state Supreme Court’s 2024 LePage decision. IVF cycles halted until legislators quickly passed a law shielding providers, allowing clinics to reopen. Thankfully, IVF is legal today in every state.
That outcome reflects overwhelming public support for IVF, including 60% of those who generally oppose abortion. The Alabama case shows both the risks of defining life at conception and the broad political consensus protecting IVF. Linking abortion and IVF undermines that consensus.
Here’s the difference between abortion and IVF
Abortion and IVF raise distinct legal and religious issues. Abortion ends a pregnancy; IVF creates embryos outside the womb, which are then implanted, donated or discarded. Many countries restrict abortion while encouraging IVF. For example, Israel subsidizes IVF even as it requires approval for abortions. European countries also limit abortions while promoting IVF. Law can — and should — treat them separately.
Jewish thought reflects this distinction. For centuries, rabbinic authorities debated abortion, weighing maternal life and health against fetal status. Some, like Rabbi Moses Feinstein, saw abortion as nearly murder. Others, like Rabbi Eliezer Waldenberg, permitted it for fetal abnormalities or maternal suffering. All agree it requires balancing maternal well-being with fetal life. Jewish law treats abortion as grave, but sometimes necessary.
Jewish law on IVF is far clearer. No authorities prohibit discarding or donating embryos. The commandment to “be fruitful and multiply” encourages IVF. Jewish law shows one can constrain abortion yet strongly support IVF.
U.S. law also distinguishes between them. Abortion law, especially post-Dobbs, regulates pregnancy and medical care — it governs a woman, her doctor, and the state. IVF law covers contracts, consent, storage, and custody disputes — not pregnancy termination. Alabama’s brief conflation was exceptional. Legislators seeking abortion restrictions can and should clarify IVF remains legal. Georgia’s 2019 “heartbeat bill,” for example, defined an “unborn child” as “carried in the womb,” explicitly excluding IVF.
Pro-life and pro-choice sides end up talking past each other
Abortion bans sometimes pose an immediate religious freedom conflict. If Judaism requires a woman to have an abortion and the state forbids it, Jews are forced to violate their religion. That is a strong and immediate claim. IVF restrictions, by contrast, have not been legislated in America and are not supported by the public.
Protecting abortion in mandated cases and ensuring IVF access are both vital, but they are not the same fight. Conflating them confuses the debate. Pro-choice advocates cite IVF to heighten fears, while pro-life advocates dismiss all religious liberty claims as exaggerations. Both sides end up talking past each other. Precision matters. Distinguishing abortion from IVF strengthens the Jewish community’s voice.
The right approach is to address each on its own terms. Abortion requires nuanced rules, not blanket bans, because Jewish law sometimes mandates abortion. IVF raises different ethical questions but is broadly supported and should be encouraged. Conflating them obscures more than it clarifies. Neither Jewish law nor American law treats them the same — and neither should we. Keeping IVF distinct from abortion rights better protects religious liberty, safeguards life, and supports families.
We seek only to help IVF advocates proceed on solid strategic footing. IVF advocates should seek — and will find — allies across the spectrum of views on abortion and would be wise to avoid alienating potential supporters by linkage to a particular view of abortion rights.
Ensuring legal access to IVF is easier than ensuring financial access. Treatments are prohibitively expensive for many. One of us personally benefitted from the Jewish Fertility Foundation’s generosity, making her family possible. IVF advocates should proceed strategically, building alliances to tackle the primary obstacle to accessing IVF.
Rabbi Michael J. Broyde is a law professor at Emory University. Dr. Rebecca C. Schmerer is a senior lecturer in core studies at Oglethorpe University.
