Feb 29, 2024 - Health

How fertility coverage mandates could clash with IVF restrictions

Illustration of a doctor's hand holding a stethoscope up to a hovering question mark.

Illustration: Aïda Amer/Axios

Proposed "personhood" laws getting a closer look after Alabama's IVF ruling could vastly complicate reproductive care in some states that require insurance coverage of fertility treatments and drugs, by setting up potentially clashing mandates on what to do with frozen embryos.

Why it matters: Barring the disposal of unused IVF embryos — one possible outcome of such measures — could drive up costs for health plans and employers and force providers to find workarounds like shipping unused embryos out of state or limiting the number of embryos produced per cycle.

The big picture: 21 states plus Washington, D.C., have laws requiring fully insured employers to offer fertility coverage, and 15 include IVF, per the National Infertility Association.

  • Meanwhile, 14 states have proposed fetal personhood legislation that recognize embryos from the moment of fertilization as humans with legal rights.
  • Utah, Colorado, Illinois, New York and Massachusetts are among the five states considering personhood legislation that also have IVF coverage mandates. Texas, which has a strict abortion ban, requires group insurers to offer coverage of IVF.

That could create a murky legal landscape if any of those states were to pass personhood laws, said Grace Totman, who co-leads the health care practice for policy analysis firm Capstone.

  • "The cost for employers, in particular, of covering fertility services in that state could become extremely high if you now have to cover those services but can't cover discardation," she said.

Between the lines: Louisiana's IVF restrictions may serve as a benchmark, Totman said.

  • The state bars the disposal of embryos but allows them to be transferred and stored out of state for that reason.
  • "Many of the pro-IVF advocates have criticized that system because it's more expensive to do IVF in Louisiana than it is in other states because of that extra step," Totman said.

Another likely outcome is that clinics may take steps to ensure that when they fertilize eggs, just one or two embryos are produced in an IVF cycle.

  • However, that raises the odds that a cycle results in no embryos and that more cycles are needed.
  • As most plans only cover a limited number of cycles or a maximum contribution, that could drastically reduce the value of fertility benefits provided in those states.
  • Some fertility benefit providers, like Progyny, say they already cover the transportation of embryos, which could mitigate that risk moving forward.

What we're watching: Republicans in conservative states are now being forced to grapple with how personhood measures could upend IVF.

  • Alabama lawmakers said they are working to ensure IVF access, and lawmakers in Florida and Texas have expressed similar interest.
  • It's possible those states and others may follow the lead of states like Indiana that have explicitly carved out exceptions for IVF, Totman said.
  • "I think the risk of the courts taking this on has been reduced and I certainly think the risk of legislators passing laws that create this situation are reduced," David Adamson, CEO of ARC Fertility, told Axios.

Go deeper: What to know about IVF after Alabama ruling

Go deeper