Illinois Democratic lawmakers are pushing multiple bills this year to further protect and expand access to in vitro fertilization and other fertility treatments.
The proposals come as the Alabama Supreme Court, and conservative lawmakers in other states, push the definition of “person” to include a fertilized egg — potentially creating new, sweeping implications for fertility treatments in those states.
“I think it’s very scary right now,” said Eve Feinberg, an infertility specialist at Northwestern’s Reproductive Medicine Center.
Feinberg also serves as president of the Chicago Coalition for Family Building, a nonprofit providing financial assistance and education to those seeking fertility treatments.
She said the U.S. Supreme Court’s decision to overturn Roe v. Wade left the door wide open for a new frontier in the legal battle over reproductive rights.
“That was one of my personal biggest fears,” Feinberg said. “That states would start to consider fertilized eggs as citizens.”
Earlier last month, the Alabama Supreme Court ruled that frozen embryos created through in vitro fertilization are considered “extrauterine children.”
IVF is a type of fertility treatment that involves fertilizing an egg cell with sperm outside of the body to form an embryo, which is then transferred to the uterus. This process can take up to several weeks.
Nicole Huberfeld, a Health Law professor at Boston University, said it’s now common practice for physicians to fertilize multiple eggs to determine which embryo is the most viable before placing it inside the womb. She said it usually takes about three to four embryos to have a successful one.
“The more embryos you create the greater chance of success you have because not every embryo that’s created will be viable, some might have genetic defects or other issues,” Huberfeld said.
Huberfeld said when people create extra embryos, they are usually given four options: keep them in cryogenic preservation, donate them to scientific research, donate them to other families trying to conceive, or destroy them. And with the Alabama court assigning personhood to an embryo, Huberfeld said deciding what to do with the other embryos can become really tricky for patients.
“If a frozen embryo is a child, you can’t place a minor child in cryostasis forever. Right?” Huberfeld said. “You can’t donate your minor child to science, and you can’t, without going through legal processes, give your minor child to another family and you cannot kill them. IVF is extremely expensive. People are not going to want to take risks with undergoing that process when they don’t know how it will be completed.”
And while the Alabama attorney general has said he would not prosecute fertility treatment providers and families, at least three clinics in that state have halted offering the treatment for fear of facing legal repercussions. Feinberg said she’s received hundreds of messages from patients worried her center would also halt IVF treatments.
“I’ve been telling all my patients that I am not concerned about the threat to reproductive choice in the state of Illinois,” Feinberg said. “Their interests in family building are aligned with state legislation.”
In 2018, former Republican Gov. Bruce Rauner signed a law requiring insurance coverage for egg or sperm cell preservation. In 2021, Democratic Gov. JB Pritzker enacted an expansion of the state’s existing law to include insurance coverage for fertility treatments to include same-sex couples and single people while reducing the wait time for women over 35.
Pritzker recently said he invites legislation to codify the right to access fertility treatments into the Illinois State Constitution.
“This is something that we do protect in Illinois. We’re never going to see this go away,” Pritzker said. “[The Alabama court ruling] is clearly a right-wing endeavor to limit the freedoms that women have to make choices for themselves.”
Nonetheless, lawmakers and reproductive rights advocates are bracing for the potential of patients and providers coming to Illinois for IVF treatment. State Rep. Kelly Cassidy, D-Chicago, said it’s still too early to tell, but they are keeping a close eye on what conservative lawmakers in other states do next.
“They achieved their goal in Alabama, but there’s probably five or six states that are just two or three steps behind,” Cassidy said.
Republican legislators in Colorado and Iowa introduced legislation last month that would define personhood as beginning at fertilization when it comes to the state’s homicide laws.
Cassidy, meanwhile, is proposing that Illinois give a $500 tax credit to physicians and patients fleeing states that are limiting access to health care that is lawful in Illinois — which can include abortion, gender-affirming care and fertility treatments.
“As we’re giving a clear path for providers to bring their licenses and their talents here, that will help with the infrastructure issues as well,” Cassidy said. “I think we anticipate … some potential need to accommodate inbound patients. Will it be at the volume of abortion? Probably not. Like I said, it’s a much harder thing to travel for.”
When the U.S. Supreme Court overturned Roe, abortion providers in Illinois saw an influx of patients seeking abortion care, as surrounding states like Missouri and Indiana swiftly moved to restrict the procedure. In response, Illinois Democrats like Cassidy worked to offer protections for providers who offer abortions for out-of-state patients, turning Illinois into what abortion rights advocates and Pritzker call a “safe haven” for abortion access.
But Cassidy says this time, with IVF, it’s a little different.
“We already had sort of that mutual aid infrastructure that has really had to scale up through the abortion funds and access projects,” Cassidy said. “There’s no such thing in either the gender-affirming care space or the fertility space.”
On top of that, Feinberg says there aren’t enough physicians specializing in fertility medicine. She says the ruling from Alabama — and any similar moves from other states — may make more trainees want to come to states like Illinois that are working to safeguard the treatment.
“My ask would be to have some funding for fellowship training in reproductive endocrinology,” Feinberg says. “As these states are going to start to overturn, to enact these personhood amendments, I fear that if IVF is going to shut down, and it’s going to negatively impact training.”
Meanwhile, reproductive rights advocates like Diana Parker-Kafka say the Alabama state Supreme Court ruling is an opportunity for Illinois to make the treatment more accessible in general. Parker-Kafka is the executive director of Midwest Access Coalition, a multistate abortion fund, who has also used IVF to conceive. She says even with Illinois’ current IVF coverage laws, she was surprised at how many out-of-pocket expenses there were for things like storing her embryos.
She estimates that number is at least $20,000 with her insurance coverage. Parker-Kafka, who identifies as nonbinary and whose partner is trans nonbinary, tried applying for grants from queer organizations to help fund the treatment, but no luck.
“We have an infrastructure for abortion care that is able to pay for most of the abortions in this country, and that’s nonexistent for fertility care,” Parker-Kafka said.
State Sen. Cristina Castro, D-Elgin, is trying to fill those gaps in fertility care coverage. Her measure would require employers with more than 25 employees to cover the diagnosis of infertility, including screening a fertilized egg before it is implanted in the uterus. It would also eliminate requiring patients to show they’ve been unable to attain or sustain a successful pregnancy in order to get coverage for IVF and similar fertility treatments.
And currently, insurance policies are required to cover a minimum of four rounds of extracting eggs from the uterus in a person’s lifetime. She is hoping her measure will up the standard for insurance providers to cover around four rounds per year, ultimately making fertility treatment more accessible.
“I’ve experienced going through this process, it is not an easy one,” Castro said. “That is why I have taken it as a mission to make the process less, I wouldn’t say restrictive, but reduce those barriers that sometimes our insurance companies like to throw in front of folks.”
