Court finds legal uncertainty over IVF embryo disposal creates real risk, despite state’s pledge not to prosecute.
On July 11, 2025, the Kentucky Court of Appeals ruled that one of three women challenging the state’s abortion statutes may proceed with her case, reversing part of a lower court’s dismissal that found all lacked standing. The appellate panel reinstated the claims of Jessica Kalb, who has nine embryos frozen for potential use in future in vitro fertilization (IVF) procedures, while affirming the dismissal of claims brought by Lisa Sobel and Sarah Baron.
Kalb argued that the legal ambiguity surrounding Kentucky’s abortion laws created a credible threat of prosecution if she were to discard nonviable or unused embryos. Although the Kentucky Attorney General stated in court filings and oral argument that his office does not intend to prosecute women for IVF-related embryo disposal, the court emphasized that this assurance has no binding effect on the state’s 57 independently elected Commonwealth’s Attorneys. As the opinion noted, “they could elect to prosecute regardless of the assurance of the Attorney General.”
In Kentucky, statutes such as KRS 311.772 define an “unborn human being” as existing “from fertilization to full gestation and childbirth,” and make it a Class D felony to intentionally cause the death of such a being. While other laws, like KRS 507A.020 (fetal homicide), specify that the fetus must be “in utero,” the court acknowledged the overall legal framework is broad enough to generate confusion about its application to embryos created and stored during IVF.
That legal uncertainty, the court held, was enough to create an “imminent injury” in Kalb’s case. She had previously canceled an embryo implantation procedure in 2022 due to fear of criminal liability and is currently paying to store nine frozen embryos. The court found that her situation warranted a declaratory judgment to clarify her legal exposure before taking further action.
By contrast, the court held that Sobel and Baron had not demonstrated a concrete or immediate harm. Neither had current IVF treatments underway, nor embryos in storage. Their claims were deemed too speculative to support legal standing. “A threatened injury must be certainly impending,” the court reiterated, citing Commonwealth v. Bredhold, 599 S.W.3d 409 (Ky. 2020).
Kalb, Sobel, and Baron also raised religious freedom objections, arguing that Kentucky’s abortion laws conflict with Jewish beliefs about when life begins and parental obligations to “be fruitful and multiply.” The court found those arguments also failed for Sobel and Baron due to lack of standing, but could proceed for Kalb, whose IVF situation was ongoing and directly affected by state statutes.
The court compared Kalb’s position to that of a thoroughbred owner in Jamgotchian v. Kentucky Horse Racing Commission, 488 S.W.3d 594 (Ky. 2016), who challenged race-entry restrictions despite not yet being penalized. There, as here, the court held that “eliminating or minimizing such a genuine risk of ‘wrong’ action by any of the parties is the very purpose of declaratory judgment actions.”
This ruling illustrates that assurances from government officials, while potentially reassuring, cannot neutralize the plain text of a statute or control the future actions of other prosecutors. If a law on its face appears to criminalize certain conduct, and that conduct is being weighed or avoided out of fear of legal repercussions, courts have held that affected individuals may seek clarity before taking action. Kalb’s cancelled procedure and ongoing embryo storage brought her within that zone.
The case now returns to Jefferson Circuit Court, where Kalb’s claims regarding statutory interpretation and religious freedom will proceed. No timeline for further proceedings has yet been announced. It remains unclear whether state officials will seek discretionary review by the Kentucky Supreme Court.