In the days since the Alabama Supreme Court ruled that frozen embryos should be considered children, patients in the state who are undergoing fertility treatments have been left scrambling to navigate the fallout. The IVF process can be emotionally taxing under any circumstances—not to mention very expensive—but patients in Alabama have found their treatment plans completely derailed by the ruling, as fertility clinics have suspended services to evaluate legal liability. Some patients have attempted to move their frozen embryos and continue their fertility care in another state, only to find that storage companies are pausing shipments out of Alabama.
“There were, of course, patients [who were] mid-cycle and patients about to go through an embryo transfer,” says Kate Ryder, the founder and CEO of Maven Clinic, a virtual healthcare provider and benefits platform. “It’s devastating because they’ve already been on such a hard journey, and an embryo transfer is the final step.”
Fertility benefits companies like Maven—which works with 700 employers and health plans globally—are doing their best to meet the moment, offering mental health support and connecting patients to clinics in Alabama that are still conducting embryo transfers and those outside the state that can take over their care. Other major players in the fertility benefits space, like Carrot, Progyny, and WINFertility, are also drawing on their networks of providers to assist patients in need.
“We’ve been prepared,” says Janet Choi, a reproductive endocrinologist and the chief medical officer of Progyny. “We’ve been encouraging all of our members who are living in Alabama who’ve been impacted to reach out to our team, and [we’re] also advising our employers to work with their HR leaders and ERGs to make sure employees are well-aware of the resources they have.”
The Alabama ruling comes as fertility benefits have become increasingly common and sought-after in the workplace, with employees even seeking out jobs at companies that help foot the cost of fertility treatments. In a recent report put out by Maven, nearly half of the employers surveyed said they intended to expand their family health benefits in the near future, with over 70% of them noting that those benefits were important for talent recruitment and retention. Unlike the issue of abortion access, which most companies didn’t explicitly weigh in on until the end of Roe v. Wade, fertility coverage is a corporate benefit that many tout as a perk.
While benefits platforms are obviously concerned about the implications of the ruling—both in Alabama and in other states that might be emboldened to follow suit—they don’t see any signs that employers will pull back on their benefits offerings. “If anything, the trend is the opposite,” Ryder says. “If IVF is part of essential care, how do you protect it?” Roger Shedlin, the president and CEO of WINFertility, adds that in his experience, employers typically only adjust fertility benefits with the intent of expanding coverage. “I cannot think of a time where an employer has ever reduced [this] benefit,” he says.
Still, there are potential downstream effects for people seeking fertility treatments, which could influence the scope of the benefits that employers provide. Choi points out that if the ruling in Alabama holds, physicians might feel obligated to recommend more conservative fertility treatments like IUI (intrauterine insemination), in order to avoid potential legal repercussions. This approach could not only drive up costs but also waste valuable time for patients. “If they eventually get to the point of IVF, seeking care out of state, my concern is the time that they spent on this more conservative therapy might further undercut their ability to actually form their family,” Choi says. Even if patients are able to access IVF care in Alabama sometime soon, their providers may opt out of genetic screening on embryos or even choose to transfer multiple embryos—effectively “turning back the clock” and reverting to more dated IVF practices, according to Choi.
If the fallout from the ruling does drive up costs for IVF patients—or possibly even puts fertility clinics out of business—the coverage offered by employers might not suffice, according to Shelley Alpern, the associate vice president of corporate engagement at the nonprofit Rhia Ventures. “Corporations that offer these benefits cap the amount that you can use,” she says. “So that’s going to put IVF treatment further out of reach.”
Some employers may also be waiting to see what comes of recent bills that lawmakers have introduced in Alabama to give legal cover to IVF providers. But if the Alabama ruling stays in effect, they might consider adding travel benefits—much like the corporate response to abortion bans in recent years—or perhaps footing the increased cost of embryo storage for patients who are unable to move their embryos out of state for the time being. When it comes to insurance coverage for fertility treatments, employers could offer to pay for an out-of-network service.
Shedlin says employers have already been “incredibly receptive” to these potential benefit expansions. “The fertility benefit has gained a lot of momentum,” he says. “While this ruling creates some uncertainties, it also reinforces the importance of [these] benefits and how the right benefit in this space is really good for business.”
That much is already clear from the impact of abortion bans and strict antiabortion laws that have swept the country since Roe v. Wade was overturned. An updated analysis released last month by the Institute for Women’s Policy Research estimates the economic losses from abortion restrictions—due to a decrease in labor force participation and increase in turnover—at $173 billion annually, a notable spike from $146 billion in 2020. Investors like Stasia Obremskey, a managing director at RH Capital, a Rhia Ventures fund that backs reproductive health companies, worry that it’s not just fertility care that might suffer if antiabortion advocates continue to pursue measures that enshrine fetal rights, but also access to contraception.
“One of the questions is: How fast is this going to spread? Is Alabama an outlier, or are other very conservative states who have been looking at these personhood bills now going to move toward that?” Obremskey says. “If you’re trying to invest in these businesses right now, you don’t know what that legal landscape is going to look like.”
As for the benefits platforms themselves, companies operating in this space have always faced regulatory challenges, but the fall of Roe v. Wade shifted the political landscape and set into motion a new wave of state legislation. And while fertility tech startups saw record-high investment in 2021 and 2022, according to PitchBook data, Obremskey says the ruling in Alabama could introduce a new layer of uncertainty and complexity for both benefits companies and their investors.
“If the ultimate implication is that in IVF treatment, couples are only going to fertilize one egg at a time, the cost of increasing cycles is going to go up pretty dramatically,” she says. “I don’t know how some of these companies are thinking about if they have employees in Alabama, where they have underwritten the risk, [they] now have a big unknown in terms of costs.”
So far, the outcry over the Alabama ruling has been swift and bipartisan, with Democrats and Republicans alike expressing their support for IVF treatments. Aside from the bills introduced in Alabama, Senate Democrats are also looking to protect IVF access through a piece of legislation sponsored by Tammy Duckworth. But at least 11 states already have some kind of broad language that enshrines personhood, while 27 states include similar language in their antiabortion laws. And benefits platforms say that even patients in seemingly progressive states are concerned about what’s happening in Alabama and the potential ripple effects.
“There’s definitely just mass anxiety and a lot of people are waiting to see whether this stays in place, and whether a dangerous precedent has been set in Alabama,” says Ryder. At the same time, however, Ryder and other leaders in the benefits space say moments like this can offer something of an opportunity, by putting a spotlight on IVF and underlining its importance. “I actually think this could potentially help the fertility industry longer term, as long as IVF is protected in Alabama,” she adds. “The majority of people are stepping up to say: ‘This is an essential part of reproductive health care. We have to have to protect it.’”
