Senators Ted Cruz (R-Tex.) and Katie Britt (R-Ala.) introduced the IVF Protection Act on Monday. The bill amends the Social Security Act by inserting the “requirement that states do not prohibit IVF services” as a condition for receiving Medicaid funding. Since the Alabama supreme court decision in February, the tide is turning on in vitro fertilization (IVF) toward strong regulations that protect parents and children. Unfortunately, the Cruz-Britt bill misses the point altogether.

The IVF Protection Act is a solution in search of a problem. No state or federally elected leader wants to ban IVF. In introducing this bill, Senator Cruz and Senator Britt are looking for ways to inoculate themselves against potential political attacks. Rather than focusing on protections for parents undergoing infertility treatments, the IVF Protection Act boosts the global, multi-billion-dollar fertility industry.

Republicans have a unique opportunity to govern IVF with the highest standard of medical and ethical care. Republicans can and should be a pro-parent party that promotes life-affirming infertility care, rather than fall into thoughtless enthusiasm for Big Fertility. Many people are currently sounding the alarm about a lack of regulation and accountability in the fertility industry. In the last month alone, the Atlantic, Vox, the Washington Post, and Slate have all released hard-hitting pieces that criticize the abuses of the industry and call for strong regulation that protects vulnerable parents and children.

So, what does the IVF Protection Act actually say?

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The act's only legal requirement is that states cannot prohibit IVF, but it fails to specify what it means by “prohibiting” IVF or how states are or are not allowed to regulate the practice. For example, what if a state, relying on the IRS tax code, wanted to limit IVF to married couples? Would this count as prohibition, since single men or women would not qualify? Or what if a state wanted to prohibit foreign nationals from using IVF to create anchor babies in the United States—is that allowed? Or, more to the point, what if a state wanted to prohibit anonymous egg and sperm donation, as Colorado does, or prohibit clinics from destroying unwanted embryos, as Louisiana does? These laws that regulate IVF do, in some sense, prohibit parts or the whole practice for some people. Where does “prohibition” end and acceptable regulation begin? As you can imagine, many people have many different answers to that question.

By inserting a broad and undefined use of “prohibition” the bill leaves it up to state courts, regulatory bodies, or Congress to define, interpret, and apply meaning as they see fit—even far beyond the original intent.

Cruz and Britt assure Americans that the act does not impede states from implementing health and safety standards in their governance of IVF—but the bill says nothing about ensuring ethical standards. Such ethical standards include limiting the use of preimplantation genetic testing—wherein doctors can test an embryo for its sex, genetic makeup, potential IQ, and even features such as the child's eye color. Most nations limit the use of such technology, yet it is rampant in the United States. May states limit sex selection on the grounds of opposing the eugenic selection of a child? The act is again silent.

Worse, the act is notably lacking in key definitions. It defines IVF as “the practice whereby eggs are collected from ovaries and manually fertilized by sperm, for later placement inside of a uterus.” While this definition is fine for a popular-level explanation of IVF, it fails to account for standard variations of the procedure.

For example, one variation, Gamete Intrafallopian Transfer, extracts egg and sperm, but the moment of fertilization occurs within the woman's body, not before. Similarly, Zygote Intrafallopian Transfer places the embryo in a woman's fallopian tubes, and not her uterus. Or, what about treatments such as artificial insemination or intrauterine insemination where only sperm is extracted and placed in the woman? Are these common treatments not protected by the act since they fall outside of the provided definition of IVF?

>>> Why the IVF Industry Must Be Regulated

All these problems are byproducts of the act's most basic problem, which is its failure to grapple with how IVF is routinely practiced in the United States. In theory, IVF may seem unproblematic, but in reality, it raises many ethical issues.

Fertility clinics often artificially stimulate a woman's body to produce as many as 30 eggs at one time for the purpose of creating a surplus of embryos. This gives the clinics many options to test and select preferred embryos based on the embryonic child's sex, genetic makeup, or overall viability, but it can cause major health issues for women. Once selected, unwanted embryos are either destroyed, donated to research, or frozen indefinitely. One estimate shows that of the approximately 4.1 million embryos created each year in the United States, only 3 to 7 percent result in the live birth of a child. For the embryos involved, the success rate is very low.

You may, like Cruz and Britt, be thinking “so what?” If no state wants to prohibit IVF, then the IVF Protection Act is a simple affirmation of Republican support for couples experiencing infertility, right? Not so fast. No federal laws currently govern IVF, and only one regulation—the Fertility Clinic Success Rate and Certification Act—requires clinics to report their success rates and basic birth outcomes to the Centers for Disease Control and Prevention. But by introducing an act that gives the federal government the right to dictate how states govern access to IVF, Cruz and Britt open the door for federal lawmakers and regulatory agencies to define, interpret, and apply this law as they see fit, which could lead to many unintended consequences.

Cruz and Britt's political folly lies in their uncritical focus on supporting the fertility industry, rather than the best interests of parents, women, and children. It's time for Republicans to recognize that the ground is shifting beneath their feet and regulate IVF according to the highest standard of medical and ethical care that prioritizes parents, not the profits of the self-regulated fertility industry.