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Plan sponsors have been faced with challenges for the nearly two years since the Supreme Court issued its decision in Dobbs v. Jackson Women’s Health Organization, which overturned federal abortion protections established by Roe v. Wade. The Dobbs decision caused many employers to reconsider the types of reproductive care they would offer to their employees under their group health plan. On February 16, 2024, in the first of its kind decision since Dobbs, the Alabama Supreme Court issued a decision giving personhood status to unimplanted human embryos. In light of this decision, employers may want to revisit their group health plan offerings in Alabama and states with similar personhood laws.
LePage v. Center for Reproductive Medicine
Lepage was brought by three couples who received in vitro fertilization (IVF) at the Center for Reproductive Medicine (the “Center”) in Mobile, Alabama. Each of the couples stored some of their created embryos in cryogenic storage at the Center. These stored embryos were destroyed by a hospital patient who entered the Center through an unsecured entrance. The three couples brought claims of wrongful death and negligence under Alabama’s Wrongful Death of a Minor Act (the “Act”), which was initially passed in 1872. After being dismissed by the trial court, the case ultimately made its way to the Alabama Supreme Court, which held that frozen embryos are considered children under the Act.
The decision immediately affected access to fertility care throughout the state as fertility centers were uncertain as to their potential liability for even routine treatment of embryos. However, the state legislature quickly responded and passed legislation protecting IVF patients and providers from liability under the Act. While these immediate effects were addressed, the ruling in this case may inadvertently affect liability for IVF providers, health plans that cover IVF, and employers who offer employees IVF services through their plans throughout the country.
Personhood Statutes
Currently 19 states, either in civil or criminal code, extend personhood status to encompass fetuses, with even more states introducing similar personhood bills. Some states, such as Montana, clearly define personhood at “viability.” However, others, as in the case of Alabama, have interpreted personhood to include a fetus “at any stage in pregnancy.” This has caused some to worry that attorneys general in such states could invoke accomplice liability in potential wrongful death charges to reach health plans and employers that offer IVF or other reproductive coverage in a similar way they have for abortion care.
Employer Action Items
While it is unclear how these laws will ultimately be interpreted and enforced, employers should be aware of the Alabama decision to classify unimplanted frozen embryos as a child for the purpose of their wrongful death statute and other state laws relating to personhood when evaluating IVF programs. The landscape regarding reproductive rights and benefits is challenging for employers attempting to offer broad based support to employees in this area. To best navigate this unsteady landscape of state and federal reproductive laws, employers should:
- Stay informed of legal developments concerning reproductive health in the states in which you have employees and covered dependents.
- Review health plan and IVF benefits and coverage to ensure they align with state and federal laws.
- Consult with legal counsel to understand potential risks and liabilities of offering or not offering certain reproductive care, particularly in states with broad personhood statutes.
This information has been prepared for UBA by Fisher & Phillips LLP. It is general information and provided for educational purposes only. It is not intended to provide legal advice. You should not act on this information without consulting legal counsel or other knowledgeable advisors.
