In late February the Alabama Supreme Court ruled that frozen embryos created and stored for in vitro fertilization (IVF) treatments are “unborn children,” and anyone who destroys them could be held liable under a wrongful death law.
Democrats and many Republicans quickly criticized the decision, and the Alabama legislature approved legislation protecting patients and medical workers less than two weeks later. But the chaos that unfurled in the days between highlighted the fraught fertility and reproductive care landscape in the U.S. Following the Supreme Court’s 2022 ruling on Dobbs v. Jackson, which overturned the nationwide right to abortion.
Although Alabama is expected to pass legislation protecting fertility later this week, many organizations, including companies that cover fertility treatments for employees, must continue to monitor the legal landscape and be prepared to respond if another state follows suit. Lawmakers in more than a dozen states have introduced fetal personhood bills in 2024, potentially impacting IVF treatment within each of these states.
Here’s what workplace experts tell Coins2Day HR leaders should do to help employees navigate changing IVF laws, including consulting with their benefits providers, meeting with their legal team, and getting on the same page with top executives when it comes to strategy and messaging.
“It is a lot for employers to have to deal with this type of legislation,” Sage Fattahian, an attorney and partner at law firm Morgan Lewis and co-leader of its reproductive rights task force, tells Coins2Day. “This all started with Dobbs, and increasingly, we’re starting to see greater access to care be restricted as it relates to reproductive care.”
Get creative with your benefits provider
Employers should contact their benefits partners and ask how any potential new IVF laws could impact their coverage, and what they can do about it.
For health insurance and fertility benefits providers, check to see if current offerings cover out-of-state travel for fertility care. Similarly, leaders should check if the providers that handle embryo transportation have suspended service in the wake of new legislation.
Following the Dobbs decision, many companies introduced travel benefits that would cover some or all of employees’ expenses for traveling out of state to receive necessary medical care, including abortion. Employers can consider introducing a similar benefit or expanding existing plans to cover travel for IVF treatments. Leaders should try to ensure that any travel benefit’s coverage is broad and not catered to one specific medical treatment to avoid any legal trouble.
“Many of the existing travel benefits are probably going to be broad enough to encompass something like this where someone might need to travel to either finish fertility treatments that they’re in the midst of, or continue fertility treatments,” says Sarah Raaii, a health benefits lawyer and partner at McDermott Will & Emery.
Employers can also consider setting up an integrated health reimbursement arrangement (HRA) account, where the organization can put money into a medical fund that employees can use without waiting for insurance policy to change. Travel expenses could be counted as a qualifying expense for this type of HRA, says Fattahian.
Benefits administrators should also think about connecting employees with the mental health resources they may need, including their employee assistance program (EAP), because of any stress created by changes to IVF laws.
“That’s definitely one of the things we’ve been telling our members, as well as employers, that access to mental health right now is really critical,” says Kate Ryder, founder and CEO of Maven Clinic, virtual provider for women’s and family planning health care. The company’s platform connects members to several mental-health-related resources, including infertility counselors.
Additional benefits that HR leaders can consider include additional paid time off for employees whose fertility treatments are impacted by changing legislation, and supplemental legal insurance so workers can get legal guidance on what treatments are protected under the law.
Speak with your legal team
Ask your company’s general counsel or other legal experts to explain any risks the company may face from any benefit changes, company policy, or public statements.
Leaders don’t have to wait to hear back from their benefits partners before meeting with their legal team. They should initiate these conversations right away.
“Just starting to get an understanding of ‘How are we going to work together on this to be able to move quickly?’” says Kayla Velnoskey, a senior research principal at management consulting firm Gartner. “Those are some things to start proactively working on, even as you’re deciding what we need to do from a benefits point of view.”
Get support from the C-suite before sending out any communications
Chief human resources officers or their benefits administrators should consult with the rest of the C-suite to determine the company’s standpoint and actions it should take. Even if a company is only communicating something like changes in benefits to its employees, internal corporate messages are often leaked to the public, meaning employers will still have to consider how both employees and the public may react.
“Work with your leadership team to determine the extent you’re going to take a stance, either internally or externally, and also how you’re going to message about any changes that you’re going to make,” says Velnoskey.
Executives should consider how employees may respond to any actions or statements from the company. They should also look at the organization’s stated values and principles, whether it has taken on similar issues in the past, or even donated to related causes.
“You could appear hypocritical by staying silent if you’ve spoken on these issues in the past, but you could also appear to be sort of virtue-signaling if you’re weighing in on something that isn’t in line with the positions you’ve taken in the past,” says Velnoskey.
Creating a system to meet with business leaders and craft a single message, no matter the topic, is critical to develop as broader social and political events continuously impact workplaces.
“Even if you’re not impacted [by the Alabama ruling], it’s a great time to start developing some of these systems around how to work with your legal counsel, how to work with your communications team, to make sure you’re ready for these types of complex issues and know how you’re going to proceed,” says Velnoskey.
