A new federal executive order purports to expand access to IVF and make it more affordable. But does it? Will it benefit LGBTQ people growing their families?
The Executive Order
The executive order (EO), released yesterday, states that it is the current administration’s policy “to ensure reliable access to IVF treatment, including by easing unnecessary statutory or regulatory burdens to make IVF treatment drastically more affordable.” It therefore instructs the assistant to the president for domestic policy to “submit to the President a list of policy recommendations on protecting IVF access and aggressively reducing out-of-pocket and health plan costs for IVF treatment.”
Importantly, though, the EO clearly says, “This order is not intended to, and does not, create any right or benefit.” In other words, it does not establish a right to access IVF, nor even any steps to improve access. It’s just a call for recommendations.
Critically, too, the EO says nothing about the contentious issue of “embryonic personhood” that has gotten new life from the U.S. Supreme Court’s Dobbs decision that overturned federal abortion rights. This issue halted IVF in Alabama last year when the Alabama Supreme Court ruled that embryos should be considered “children.” Almost all IVF providers in the state immediately stopped services, fearful of liability. State legislation was quickly passed to provide legal immunity to IVF providers and patients—but some lawmakers and advocates remain concerned that it still does not sufficiently address the state’s constitutional definition of embryonic personhood, as CNN reported.
The EO also states that it “shall be implemented consistent with applicable law and subject to the availability of appropriations,” which feels like it could be used as an escape clause to do nothing, either for budgetary reasons or in states that have embryonic personhood laws.
The Bigger Picture
I spoke last June with Jennifer Klein, director of the White House Gender Policy Council under President Biden, about the threat to IVF and the Biden administration’s response. As that post explains, IVF-related bills from both Democrats and Republicans have faltered along party lines, with Democrats attempting to establish a federal right to IVF, lower costs by requiring insurers to cover IVF, and protecting an individual’s use or disposition of their gametes and embryos, most recently via the Right to IVF Act. Republicans, in contrast, proposed the IVF Protection Act, that simply would have withheld Medicaid funds from states that prohibit IVF, but said nothing about the disposition of gametes/embryos.
U.S. Senator Tammy Duckworth (D-IL), one of the co-authors of the Right to IVF Act, who used IVF to have her two daughters, issued a statement yesterday calling the EO “overly vague” and “toothless.” It “does nothing to expand access to IVF,” she said, noting that the president is “the reason IVF is at risk in the first place.” She called on the president to instruct Republicans to support her bill, “Otherwise, it’s all just lip-service from a known liar.”
U.S. Senator Patty Murray (D-WA), who also co-authored the Right to IVF Act, said on Bluesky, “Let’s be clear: this PR stunt does NOTHING to actually expand access to IVF. Republicans created this mess by overturning Roe and they’ve blocked legislation MULTIPLE TIMES that WOULD make IVF care more accessible and affordable for families. Give me a break.”
A few states, like California, are taking matters into their own hands, as I explained in this post, with 15 states now requiring large insurers to cover the diagnosis and treatment of (in)fertility services, including IVF, per RESOLVE. Only six states, however, both require private insurers to cover fertility treatment care and are explicitly inclusive of LGBTQ people in such coverage (i.e., by updating the definition of “infertility” to make it more inclusive of people who simply need the opposite gamete (egg or sperm)), per the Movement Advancement Project.
The EO not only says nothing about a more inclusive definition of infertility, but (unsurprising for this administration) frames everything in relentlessly binary, different-sex terms: “men and women experiencing fertility challenges”; “loving and longing mothers and fathers.”
At the same time, some anti-abortion activists are also upset by the EO, as the Guardian reports, since they believe IVF is not “pro-life.” If the president is still trying to court them, he may be less inclined to push for actual action around IVF (even though a whopping 86% of Americans believe that IVF should be legal, however, according to a CBS News/YouGov poll last March).
So no, I wouldn’t get too excited about this EO. While it’s not beyond the realm of possibility that something positive could come out of it, it also feels a lot like window dressing.
