IVF uncertainty in Alabama: What can employers do? 

A ruling by the Alabama Supreme Court that frozen embryos created and stored for in-vitro fertilization (IVF) are considered children under state law is calling into question the future of IVF in the state. In the case, three couples sued a health clinic over the inadvertent destruction of frozen embryos under the state’s Wrongful Death of a Minor Act, and the court’s ruling could create significant legal liabilities for fertility providers throughout the state. As a result, several providers, including the largest hospital system in the state, have halted IVF treatments while they review the impact of the court’s ruling. But the Alabama legislature may have the last word as they work to restore access to IVF.  

Mercer has been tracking the prevalence of IVF coverage for many years in our National Survey of Employer-Sponsored Health Plans. As we’ve reported, throughout the 2000s and early 2010s we consistently found that fewer than a fourth of large employers (those with 500 or more employees) covered IVF. But that rose to 27% in 2020, jumped to 36% the following year, and reached 46% in 2023. Coverage for IVF and other family-forming benefits are increasingly seen as an essential element of an inclusive benefits program.  

What can Alabama employers that cover fertility treatment do?

Employers may want to identify employees and covered plan members residing in Alabama and consider the potential implications this ruling may have on their family building journey. Ask the health plan or fertility benefit vendor what IVF treatment and embryo transport access in Alabama looks like today—whether in-network clinics are continuing to provide IVF treatment or have paused it—and request regular updates. Communicate openly and honestly with employees about their fertility benefits, resources available for assistance and how they can receive future updates on the status of care in Alabama. And prepare human resources staff and managers to either answer employee questions or direct them to the appropriate resources.

This may also be a good time to review the plan’s reproductive and medical travel benefits and the organization’s leave policies. Areas of coverage an employer may want to review include:  

• Embryo transport coverage. Review the plan terms for transporting embryos out-of-state and review plan or vendor support services for members, including assistance locating available storage facilities and coordinating transfer.
• Medical travel. Review the health plan for medical travel and lodging coverage and confirm if benefits apply to members seeking fertility care.
• Leave benefits. Review paid and unpaid leave policies for application to employees who may need to travel for IVF, which may require out-of-state stays for a week or more during egg retrieval or embryo transfer to the uterus.

How are fertility vendors responding?

Many stand-alone fertility networks and reimbursement solutions are confirming the operational status of their vendor networks or partner clinics in Alabama. In addition, they are actively reaching out to their employer clients with employees in that state to remind them of their current benefit design – whether it covers shipping eggs or embryos, long-term storage and if the benefit allows members to receive treatment at any in-network clinic in any state. In some cases, if covered under the plan, the vendor’s clinical or advocate teams are offering emotional and logistical support to help patients work through treatment options and coordinate egg or embryo transportation outside of Alabama, if desired. Finally, some are offering to administer a travel benefit to allow plan members to pursue IVF treatment outside of Alabama, or other states, without the added expense of travel.

What does this ruling mean for fertility benefits in other states?

There is no direct impact on fertility benefits outside the state of Alabama, but employers should monitor other states that broadly define fetal personhood and restrict reproductive healthcare. There are 21 states that have passed fertility insurance coverage laws and may become future “destination states” for members seeking IVF services who reside in states that may restrict care.

Since the Dobbs ruling overturned the federal constitutional right to an abortion, state law related to reproductive healthcare has been undergoing rapid change. Employers will want to keep an eye on these developments and plan ahead so they can respond quickly to scenarios such as the one unfolding in Alabama.