URBANA, Ill. (WCIA) — Catholic hospital system OSF HealthCare will only cover fertility treatments for its workers who are in opposite-sex marriages, leaning on a set of religious health care directives as justification. Some lawyers say religion may not protect against state and federal anti-discrimination laws.

The policy, first exposed by Bloomberg Law in July, is included in the health benefits provided to more than 24,000 employees at 15 hospitals and another 131 medical facilities primarily in Illinois.

OSF supports means of assisting married opposite sex spouses to conceive in ways that assist, and do not replace the marital act of sexual intercourse, in reaching its procreative end, and in ways that respect the life and dignity of any individuals conceived as well as the spouses themselves.

OSF Employee Medical Plan, Fertility Treatment Coverage Description

Valena Hedin, a board member at non-profit LGBTQ+ advocacy group The UP Center of Champaign, was “shocked” to hear of the policy this week.

“Because although we are aware that OSF is a Catholic organization, the wording of their policy was so blatantly discriminatory,” she said in an interview Thursday.

In an email statement, OSF said its employee benefits are aligned with the Ethical and Religious Directives for Catholic Health Care Services developed by the U.S. Conference of Catholic Bishops, which includes a list of healthcare-related instructions. The document outlines which types of infertility treatments are “morally right.”

“But just because you’re in compliance with something doesn’t mean that it isn’t harmful,” Hedin said in response.

Rachel Johnson, a staff attorney for the Illinois ACLU’s women and reproductive rights project, said the policy is “certainly discriminatory” and a potential violation of both state and federal anti-discrimination laws.

“So the religious entity is using religion as a basis for discrimination and religious freedom does not come with a license to discriminate.”

The Illinois Human Rights Act outlaws discrimination, in part, on the basis of sex, sexual orientation, and marital status. Insurers and health care providers are able to refuse treatment to a protected class under the law only if they would do the same for a non-protected class.

An OSF spokesperson confirmed the wording of the policy means the health system would not cover certain types of fertility treatments for anyone, a married opposite-sex couple or otherwise. Specifically, assistive reproductive treatments (ART), meaning those that require fertilizing eggs or embryos in a laboratory, are not an option. Sperm donors and surrogates are not covered either.

Some versions of ART treatments are a primary means of conception for same-sex couples, but traditional conception, as Hedin explained, is an option for some members of the LGBTQ+ community. The policy also apparently bars unmarried opposite-sex couples from other forms of fertility treatment, including medication.

“I think the issue is that they are willing to provide infertility coverage to people who are in heterosexual relationships or opposite-sex relationships, and they’re not willing to provide that care to people who are in same-sex relationships, causing an impact on who can and cannot access that care,” Johnson said.

“They don’t get to decide who has access to the right to have children and who does not.”

In the same statement, OSF asserts its benefits are “in full compliance” with state and federal laws.

Addressing infertility coverage requirements and definitions under the law

A number of health insurers are required to cover fertility treatment under Illinois Insurance Code, including in vitro fertilization (IVF) which is an assistive reproductive treatment that involves combining eggs and sperm in a laboratory to create embryos.

However, the state’s insurance code doesn’t regulate self-insured plans, like the one offered to OSF employees. Instead, its benefits are governed by federal law, which doesn’t require fertility treatments. There has been some talk about changing the law in Congress, but nothing concrete.

On a national scale, multiple lawsuits surrounding denied infertility treatments have cropped up in recent years, including against private, non-sectarian insurance companies.

More often than not, insurers that offer coverage for fertility treatment do so based on the U.S. Centers for Disease Control and Prevention’s (CDC) definition of infertility, which is not being able to get pregnant after at least a year of unprotected sex (give or take depending on a woman’s age).

“I would say that it, at least, is unintentionally exclusionary,” Hedin said when asked to comment on the definition.

“I think that’s just something you know, as organizations like ours continue to advocate for more inclusive language, in policies, in laws, in, you know, just the way people talk to each other.”

Illinois Insurance Code was amended this year to expand what it means to be infertile under state law.

“That definition was causing great harm to LGBTQ people because they couldn’t meet that definition and would have to pay out of pocket for multiple rounds of infertility care before getting the same coverage that people in heterosexual relationships would receive automatically and without charge,” Johnson said.

Again, that wouldn’t apply to anyone enrolled in OSF employee benefits.

Neither the ACLU of Illinois nor the UP Center has plans to take legal action presently. The UP Center will soon request to open a dialogue with OSF HealthCare leadership, Hedin said.

“So our goal is to raise awareness about the policy and to hold OSF accountable,” she elaborated.

“We want to be able to reach out to them and provide trainings, provide, you know, feedback of why this policy is harmful and what could be changed about it to make it more inclusive.”