Several in vitro fertilization (IVF) providers paused services last week after Alabama’s Supreme Court ruled embryos can be considered children under state law. The ruling was issued in two wrongful death cases filed by plaintiffs who alleged their embryos were destroyed by a patient at the Mobile Infirmary Medical Center.
Providers’ decisions to pause services while they determine their legal liability for offering IVF left Alabama patients in the lurch, with one reporting their implantation appointment was canceled, and another saying they planned to go out of state to continue their care.
Following bipartisan pushback, Alabama lawmakers passed legislation on Feb. 29 that would protect IVF clinics from legal liability. A bill is expected to be signed into law next week, though it doesn’t resolve questions about granting personhood status to embryos.
In the meantime, the ruling poses wider implications for employers covering IVF, as well as the benefits brokers with whom they partner. One-third of organizations surveyed by the consulting firm Gartner offered a fertility subsidy as of October 2022.
How employers covering IVF may be affected. While the Alabama ruling raises questions about how embryos can be stored, IVF treatment itself is still currently legal in the state, Kayla Velnoskey, a senior research principal with Gartner’s HR group, told HR Brew. As such, she said it’s unlikely that companies will start rolling back their existing fertility benefits.
Once legislation shielding providers goes through, it’s likely IVF clinics will resume services. But while some clinics’ services remain paused, there are a number of potential knock-on effects that employers covering IVF should consider, Velnoskey said. Alabama patients who are about to start their fertility journey may need to seek out-of-state treatment, as well as look into options for transporting embryos out of the state.
Employees may also have concerns about what will happen to embryos that are already frozen, given it’s now unclear whether unused embryos in Alabama may be donated or discarded once the desired number of pregnancies is achieved. Storing embryos indefinitely can be expensive, since storage fees can cost several hundred dollars annually, Velnoskey said.
HR departments seeking to better understand how their employees may be affected by this ruling should connect with all their benefits providers, Velnoseky said. This includes not only those providing fertility services, but also core health insurance providers, EAP providers, and legal benefits providers. Decision-makers may benefit from consulting total rewards experts as well as their legal teams to fully understand the potential legal risks of making any changes to their benefits, or promises to employees, given the landscape is complex.
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How fertility benefits companies are reacting. Some fertility benefits providers said they’re committed to continuing to cover IVF care, but recognized the ruling may have an impact on employees in their networks.
Kindbody, a network of fertility clinics that also provides benefits, said in a statement via PR rep Margaret Ryan that they are “continuing care as usual,” as well as “assuring our employer clients and our patients that Kindbody’s national network of clinics will continue to be accessible to everyone who needs care, and that we will do what is necessary to support our patients regardless of where they live in the US.” Kindbody doesn’t have clinics in Alabama, though some of the clients it works with have employees there, the Wall Street Journal reported.
Progyny, a benefits company that provides fertility and family building services, saw its stock drop 17% after reporting earnings on Feb. 27, the largest decrease since Feb. 2021. On an earnings call CEO Peter Anevski said in an earnings call that he didn’t anticipate the Alabama decision would “have an impact on the overall industry.”
Progyny has clinics across all 50 states, and the company’s chief medical officer, Janet Choi, confirmed some of its patients and physicians have been impacted by the ruling. She said Progyny has been encouraging members, especially those in Alabama, to consult patient-care advocates for advice on how to navigate their fertility journey. These advocates can counsel patients on out-of-state options for IVF, Choi said. She noted Progyny plans cover embryo storage for at least a year, as well as tissue transport costs.
Choi said she doesn’t see this ruling leading employers to limit IVF access. “I think what employers are realizing is it’s even more vital to offer a comprehensive solution with access to a large national network of providers, so that their employees can get their medical needs met.”
Correction 03/05/24: This piece has been updated to clarify that Progyny covers all costs associated with tissue transport.