At Family Equality, we know that there are countless ways to make a family. For some, pursuing adoption, foster care, assisted reproduction, donor conception, or surrogacy might be the path to parenthood. For others, families form through blending and step-parenthood or friendship and choice. Regardless of your journey, you deserve the freedom to find, form, and sustain your family in whatever way feels right for you.
But, since the Supreme Court’s decision to overturn Roe v. Wade in the summer of 2022, we’ve witnessed a wave of organized threats to these freedoms, from courthouses to state houses across the country. Here’s what you need to know.
The obstacles we face
Threats to reproductive freedom
In June 2022, the Supreme Court issued a decision in Dobbs v. Jackson Women’s Health Organization, eliminating the fundamental right to abortion and sending shock waves through our nation. Since then, we’ve watched the Dobbs decision embolden courts and legislatures to drastically restrict people’s rights to make their most intimate decisions.
In February 2024, the Alabama Supreme Court issued a decision in LePage v. Center for Reproductive Medicine that established frozen embryos as legal children. The ruling, and the “fetal personhood” ideas underpinning it, open the door to any number of laws that can be used to restrict the rights and freedoms of pregnant people, prosecuting or punishing them for their pregnancy outcomes. Even before decisions like LePage, this has been an issue affecting people of color for years.
What’s more, the case has serious implications for safe, effective, and common medical practices like in vitro fertilization (IVF) that often involve freezing, storing, and destroying embryos. Immediately following the Court’s decision, the three largest fertility clinics in Alabama paused operations.
While new legislation in Alabama has fortunately led to those clinics reopening, this decision illustrates how Dobbs can embolden state courts to drastically restrict people’s rights to make personal decisions about their own sexual and reproductive health care by controlling how and when people have families. This can leave any family relying on IVF — including LGBTQ+ people as well as anyone experiencing medical, social, or status-based infertility — without feasible options.
Dobbs’ reach extends beyond the courts, empowering legislators to pass restrictions not only on abortion, but also on assisted reproduction. These restrictions are creating “legal conundrums” surrounding IVF and embryo disposition. While some proposed legislation includes carve-outs for certain forms of assisted reproduction like IVF, the continued efforts we’re seeing in courts and legislatures are ultimately undermining people’s rights to make decisions about their own bodies and families. They’re also adding new hurdles to the already exceptionally long list of barriers people face when accessing assisted reproduction, including exorbitant costs and exclusion from health insurance coverage.
Risks to parental recognition
All children deserve to have a secure legal relationship with their primary caregivers, usually their parents. This legal relationship, called “parentage,” is foundational for child well-being and stability. From parentage, many rights and responsibilities flow. For example, parentage impacts many mundane but important day-to-day activities like being picked up from daycare or school or attending a routine appointment. It also impacts more urgent needs such as access to emergency medical care, planning for a child’s educational future, custody and visitation if the parents separate, and inheritance rights in the event of the death of a parent.
The Alabama decision comes on the heels of state courts undermining LGBTQ+ family formation by calling into question the legal security of children born through assisted reproduction. In Oklahoma and Idaho, courts recently stripped non-biological LGBTQ+ parents of their parental rights. These cases are chilling examples of anti-LGBTQ+ discrimination and are part of the escalating threats to LGBTQ+ people and families we’ve seen since the Court ruled in Dobbs.
Unless we improve the laws that govern parental recognition, LGBTQ+ people will continue to experience discrimination that unjustly restricts their ability to form and protect their families, ultimately harming children.
The good news
This legal snapshot might look discouraging. But here’s the good news: Powerful advocates, policymakers, and everyday Americans are on our side. Despite the wave of bad bills and decisions we’ve seen in recent years, there has also been important progress.
The Access to Family Building Act
On a national level, legislators have acted to explicitly protect access to fertility care. Before the Alabama Supreme Court ruled in LePage, Senators Tammy Duckworth (D-IL), Patty Murray (D-WA), Tammy Baldwin (D-WI), and Kirsten Gillibrand (D-NY), and Representative Susan Wild (D-PA-7), introduced the Access to Family Building Act (S. 3612/H.R. 7056). This important bill establishes a statutory right for hopeful parents to access reproductive services like IVF, ensuring that fertility treatments remain accessible in the United States.
Changes to fertility coverage
Cost is a huge hurdle for families pursuing assisted reproduction. Fortunately, last fall, we saw significant progress toward states improving their laws and insurance companies improving their coverage with the American Society of Reproductive Medicine (ASRM) updating and expanding its definition of infertility.
In the new, inclusive definition, ASRM acknowledges that individuals and couples deserve equal access to fertility care no matter who they are, who they love, or how they identify. While this policy change doesn’t guarantee that people who are single or LGBTQ+ will receive insurance coverage for their fertility needs, it’s a step in the right direction. Many states rely on the ASRM definition to determine diagnosis and treatment of infertility in their coverage mandates, and insurance plans often rely on ASRM’s definitions to determine coverage.
Equipped and empowered by ASRM’s change, Family Equality is continuing to work alongside ASRM, RESOLVE, and others to encourage legislators to update their definitions and ensure that their state offers comprehensive and inclusive fertility coverage, including people on Medicaid. Today, there are bills pending in several states that would improve equity in family-building healthcare.
Easing the path to parental recognition
In addition to expanding access to fertility healthcare coverage, Family Equality is working with movement partners like GLAD, NCLR, COLAGE, and Movement Advancement Project to update state laws to ensure that children born through assisted reproduction and surrogacy have equal access to a legal parent-child relationship.
To address the current patchwork of protections for children and families, we’re advocating for:
- Comprehensive parentage reform in places like Massachusetts, Michigan, and across the United States,
- More streamlined confirmatory adoption processes for people who are already legal parents under state law or doctrine, and
- Expanded protections for surrogates and expanded and streamlined parental recognition in New York.
These advocacy efforts work! On April 1, 2024, Governor Whitmer signed the Michigan Family Protection Act into law, providing equal protection for all Michigan children and families by creating a clear path for children born through assisted reproduction, including IVF and surrogacy, to establish a secure legal tie to their parents. This victory for equality is a result of the Michigan Fertility Alliance’s great thought leadership and extensive input from Family Equality and organizations like GLAD, the Center for Reproductive Rights, and NCLR, as well as individual lawyers who are members of the American Association of Adoption and Assisted Reproduction Attorneys.
How you can help
Family Equality and so many other expert partners are working hard to protect the right of everyone to love and build the family of their choosing. And, our hard work pays off. In 2023, 87% of the anti-LGBTQ+ bills introduced across the country were defeated because of the hard work of organizations like us and advocates like you.
That’s right! You can make a difference in the lives and freedoms of current and future LGBTQ+ families, too. Here’s how:
- Vote for equality champions. On local, state, and national levels, you have the power to change the tide by making your voice heard in every election.
- Support LGBTQ+ rights organizations like Family Equality. Every day, we’re working on the frontlines to protect and defend the rights of LGBTQ+ families. By donating to our organization, volunteering, encouraging your workplace to become sponsors, attending events, and more, you help make this work possible.
- Share your story. Your story has the power to change hearts and minds, whether you’re talking to a neighbor or testifying at the state house. To get started, share your story with Family Equality today!
- Take action. By signing up for our newsletter, you’ll receive national and state-specific updates on current initiatives happening where you live — and how you can get involved.
Looking for support on your fertility journey?
Family Equality hosts a virtual peer group every other Wednesday for any and all LGBTQ+ folks trying to conceive! Register today to receive log-in information.
Meg York
Senior Policy Counsel, Director of LGBTQ+ Family Law and Policy
Meg was named LGBTQ+ Bar Association’s Top 40 Lawyers Under 40. Meg is committed to providing high-quality legal advocacy to the most vulnerable and to making law accessible to all. When she is not working, Meg enjoys spending time with her wife and three children in Vermont’s great outdoors.