Welcome to ASRM Today, a podcast that takes a deeper dive into the current topics in reproductive medicine. I'm Jeffrey Hayes, and today on the show, we continue our season-long discussion of LGBTQ plus issues in reproductive medicine by diving into some of the political and legal questions that arise. Joining me for this discussion is my co-host, Dr. Lowell Kuh.
How are you today, sir? Hi, everyone. Doing great. Thanks so much, Jeff.
Fantastic. Our guests today are Jennifer Moss, who is founder and owner of the Law Office of Jennifer P. Moss, PLLC. Jennifer is the chair of the executive board of the Legal Professionals Group at the American Society for Reproductive Medicine.
She is an ART fellow of the Academy of Adoption and Assisted Reproduction Attorneys, and an ART fellow of New York Attorneys for Adoption and Family Formation, where she serves on the ART legislative committee. Also, she's a member of the American Bar Association's Assisted Reproduction Technology Committee, New York State Bar Association's Family Law and LGBTQ sections, the Family Law Institute the National LGBTQ Plus Bar Association, and the Society for Ethics in Egg Donation and Surrogacy. On top of all that, she is also a member of the NYLGBT Network Chamber of Commerce and annual sponsor of their Families Day that is held each spring.
Welcome to the show, Jennifer. Thank you. Sorry, it's so much to read.
I'm so happy to be here. Thank you for having me. Not at all.
Not at all. Our other guest today is Janine Oleaga, who is founder of Oleaga Law Fertility Law Group. She serves in several leadership and board positions with organizations dedicated to expanding access to family building, such as the Advocacy Committee Chair and board member of All Paths Family Building, board member of the BIVF Foundation, the NYAAFF, and the New England Fertility Society.
Janine is also an active member of the American Bar Association, American Society for Reproductive Medicine, and several national and state legal organizations focused on reproductive law and the LGBTQ plus family rights. Welcome to the show, Janine. Thank you so much, Jeff.
I'm excited to be here. Fantastic. I'm going to jump right into it with a question.
I want to talk a little bit about initially sort of policy impacts on patients' lives. And if you could, could you kind of guide us here about how have recent political or legislative shifts around reproductive health directly affected LGBTQ plus patients' ability to have access to things such as fertility care or, you know, other services and family building options? Well, I can jump in a little bit on that, and then I'm sure Janine will have lots to add. So with LGBT folks, a lot of people are using a lot of different third-party reproductive methods in order to become pregnant.
We know that among couples, LGBT couples, they're missing a few things. And so they need to look outside of the couple often to have their families. And so that means that they are the biggest users of surrogacy to form their families, egg donation, sometimes sperm donation.
And so there's a lot of different third-party methods that are used. When we have these legislative shifts around reproductive health, it affects the ability for folks to be able to use those things. For instance, if people are using surrogacy, we have different states that have different laws.
Everything is state-specific, and it makes it harder for them to access third-party reproduction. And so it's really, it's really a problem. When we're talking about surrogacy, we have to also consider where the surrogate lives and what is going to be going on in their state and what the laws are there.
And that may affect the ability for a surrogate to get needed health care in terms of abortion or reduction or other things like that. And that's really problematic because what it does is it ends up cutting down on the pool of surrogates that folks want to match with because they have to be really concerned about what if the worst happens and they need to do some sort of medical care like that. They want to be able to get that more easily.
So it's affecting things in a lot of different ways. It's leading to longer match times for surrogates, leading to fears that people have in terms of what state they can work in. And so there's a lot of different issues that are at play here.
I think Jen highlighted exactly something that's very pertinent when we're talking about LGBTQ family building, and that is that we have a fragmented patchwork of laws that differ greatly across state lines. So while access is a concern for everybody when we're talking about LGBTQ patients specifically that are seeking reproductive care, access to fertility treatment, abortion services, gender affirming reproductive care becomes not only a medical issue, but also an issue that's contingent on geography and politics. So same-sex couples, transgender patients, crossing state lines can mean differences in delay of care, increased cost, out-of-pocket costs, outright denial of services.
And we've already seen that restrictions on abortion have ripple effects that go beyond pregnancy termination. They also impact miscarriage management, embryo disposition, practices at IVF clinics. So we know that these are issues that are specifically relevant to LGBTQ family building.
And even further, policies don't always impact the LGBTQ community the same way. For example, a gay couple in New York City may not face the same barriers to accessing care that a transgender individual in a rural community will face. So when we're talking about not only a patchwork of laws, we're also talking about differences in geography, and that also impacts access.
Oh, very good. Thank you so much, guys. So I was wondering if we could also now focus a little bit on unequal consequences.
And so in what ways do reproductive policies disproportionately affect the LGBTQ plus people, especially like trans, non-binary, Black, Indigenous, low-income, or even rural patients? And how does politics shape who is most vulnerable to losing care? Well, I think with a lot of the changes that we've seen, there's been a lot less research into those groups that you've mentioned. And so when there's less research, there's less results, and there's unequal treatment. And so we have that issue right now going on because a lot of the research has stalled or, you know, on pause, let's say.
In terms of the policies that are coming out, like I said before, we have LGBT folks that are using third-party reproduction at a higher rate than others. And so they are affected more than anyone else when we have these changes in the laws. And the politics that go on really affect when people are going to be able to get their treatment, where they're going to be able to get their treatment.
What we're finding is that it's becoming more expensive to operate clinics. It's becoming more expensive to do any of these things. And so clinics are closing.
And when clinics close, that is unfortunately affecting people that are in a lot of different areas. If there are stricter guidelines and there's greater fear among the people that are performing the necessary methods that we're talking about here, then we're going to have less clinics available. And people are going to have to travel further, meaning that they're going to take time away from their already existent children, from their work.
They're going to have to have transportation. And so this affects people that don't really have the ability to take off work and do things that don't have the money to travel quite as far. And so when we have less clinics because of the laws that are happening and the changes that are happening, it makes it harder for people to have access and to locate quality care.
Exactly. I think there's no denying that racial disparities in health care access exist, right? And when they intersect with the LGBTQ community, they become amplified. So we see already marginalized people even further limiting access to care.
And again, if you compound that with take my previous example of a gay couple in New York City compared with a transgender individual in a rural community, their access is going to look very differently. And that is directly impacted by politics and policies that we are seeing enacted right now. There's a very big gap between states that are moving towards more fertility access, including insurance mandates, versus states that are moving towards more restrictive access.
When policy intersects with medicine, there's a role there that determines who may have access and who may not. When laws permit exemptions or don't provide mandates, they effectively kind of shift the from all of us to onto the people who are the most vulnerable in order to navigate an already complex system where if you do have privilege, if you do have access, it already can be difficult. So when you put all of those factors together, it only further makes it difficult for the most vulnerable people of our population.
Right. So when we're talking about gatekeeping and basically like some ideology here, are there specific things that providers need to know in this area that can help them expand here and sort of be more accessible? Yes. Providers love to hear from lawyers, right? I think sure.
Right. There's definitely there's a need for education among the population in general, but also among people. We might take for granted that people already know what we know, and that's just not true.
When it comes to medical gatekeeping and narratives around like religious freedom, for example, right, or restrictions around parental rights, that's not only going to depend on location of clinics and location of assisted reproduction, but also on location of where patients may reside. And Jen just talked about how someone in a rural community may travel very far across state lines to access care. So what a provider may know to be true in their day-to-day life may not be true for that patient, depending on where they live.
And I think religious freedoms, I'm glad you brought up that topic, or maybe you didn't, but I think that's where we're heading. No, no, no. Yeah, go ahead.
Okay. The concept of religious freedom on its face doesn't sound the way that it may be being used lately, right? Sounds great, right? Shouldn't everyone have religious freedom? Isn't that, you know, important to American society? We decided that we were going to have separation of church and state. The issue is that the way that it's being used right now is that it's kind of giving individuals a pass to deny services, particularly to the people that we just spoke about in the LGBTQ community.
So sure, while I understand that it's important to have religious freedom, the way that it is being used right now kind of has a chilling effect on reproductive medicine in general. Providers can be discouraged from offering care based on their location or based on their client's gender identity or sexual orientation. And this just undermines the relationship between provider and patient, which is why we're all here, right? So it's a scary concept in the way it's being used right now as it's being applied to reproductive medicine.
And I would just add that for providers, I think that it's really important to stay in close contact with the attorneys in your state. You know, this is all very state specific at the moment. And so we want to make sure that providers have access to the attorneys that do this and that handle this all the time and that are monitoring these things.
ASRM does a great job of doing that. And, you know, this is a rapidly changing area. And I know that that's really scary for providers.
You know, no one wants to put themselves out there if something's going to change, you know, midway during a cycle. But that's kind of the reality of where we are right now. And so I think that there are people that are staying abreast of all of these things.
Like I said, ASRM is doing a great job doing that. And so it's really important to have access to those people and to know that folks are just a phone call away. And we can get that up to date information so that providers can continue doing the job that they need to do to medically care for their patients while we're monitoring what's happening.
Thank you. Yeah, totally. Totally makes sense.
You guys had kind of mentioned that there's this patchwork of state laws. Different states have different laws. And then you have the sort of the federal laws as well.
And so this seems like there might be a bit of a struggle, a power struggle between federal law, state law, and state power and federal power. So as states move in different political directions on reproductive and LGBTQ plus rights, you know, what should patients understand about, you know, their type of care they can receive depending on where they're located? And how does this location determine their access, legal process, legal protection, and the risk when seeking care? Like, what do they need to know before they can get it? That's a really good point. And I think that patients do need to speak with their doctors, but also need to, from the very beginning, speak to attorneys.
I get calls at the beginning of people's IVF cycles saying, hey, I'm considering this. I'm considering this in this state. I do a lot of third party reproduction.
And so people say, hey, I'm thinking of matching with a donor that's in this state, but doing the medical process in this other state. How's that going to work? Hey, I'm thinking of matching with a surrogate in this state, and I'm living here. How's that going to work? So I think having a good game plan from the start is really important, because as you said, we do have federal laws regarding abortion and things like that, and the availability, I would say, in some aspects.
But that really, you know, when Dobbs was overturned, I'm sorry, when Roe was overturned by Dobbs, that was really throwing it back to the states to make decisions. And that's how we ended up with this patchwork of state laws. It's always been like that in terms of forming parental relationships.
So parental rights has always been a state run operation, if you will. But in terms of accessing abortion and other health care, that is really more in the states now than it ever has been. So I think speaking to the doctors and saying what's allowed, what's not allowed, speaking to the attorneys beforehand at the very beginning, what's allowed, what's not allowed.
When people are going through a cis reproduction, they're usually creating embryos, and not just one, not just two. They're going through cycles. They're retrieving eggs.
They are fertilizing, they are getting many embryos. And so what is that state law going to say about the use of the embryos, discarding the embryos, options for the embryos? Can they move the embryos later? Should they move the embryos now? So those are questions that I think that people need to ask right from the very start, and not just focus on the immediacy of getting pregnant or solving the immediate problem, but really map it out for the future. And you know, things change.
So we're always subject to that. We do have to say that, you know, what our advice is today may be different than what our advice is next week. But it's important to, again, have a trusted attorney that you can speak to, speak to the providers, have providers speak to attorneys so we can all stay abreast of what's happening as it rapidly changes.
I love when doctors ask about, like, federalism, that we don't get to talk about that in office, as lawyers after law school. But that family law has historically been governed at the state level, like Jen said, parentage, securing legal parentage is very different in every state. Third party reproductive laws are very different in every state.
Clinics are regulated differently in certain states. We know that. Jen and I practice in New York.
So we've always had this patchwork when it comes to family law, but we're at this interesting moment in time right now where the federal government is playing a very interesting role in the way it is impacting state legislation and what is permissible for states to do and what is not permissible for states to do. Like Jen said, with the overturning of Roe, we find ourselves in this situation where access to abortion care is different over state lines. And it is not a far-fetched idea that access to reproductive care is the same.
So like we talked about earlier, there are states that are moving in more protective directions. Fertility insurance mandates, one protective parentage laws, another and a million different ways. But just a stone's throw away is a state that's moving in the opposite direction, right? More restrictive laws, less access to care, fewer pathways to securing legal parentage, especially for LGBTQ individuals, if not for anyone who's navigating infertility.
And it's a concerning problem that we all need to continue to be aware of. Thank you. And very, very wise words.
Thank you. Absolutely. And we're running short on time.
I want to make sure that I get everybody out on time. Is there anything that you feel is the most pressing at this time? And again, thinking about our main topic here about LGBTQ plus family rights, is there anything that providers need that you think is the most pressing thing that providers need to know at this time? I think we're all here because we want to ensure that everyone has the ability to make decisions about their bodies and build their families with dignity, with security, regardless of sexual orientation, gender identity, marital status, race, regardless of state of residence. So where you can push and become involved in legislation in your state, please do.
It's great to stay informed. It's even better to stay active. So that is one thing I want everybody to do.
And I tend to be annoying about it. I would say that providers today really need to know who they're working with and to ask the questions early about whether or not the parties that are ultimately going to be the planned parents are going to have genetic connections to the children that they're planning on having because that does change from state to state. And so I think providers getting that background information from the start and knowing what their family building plans are is really important because some states will allow some things while other states will not.
And so maybe it's important to send people to other locations if that's going to be a better location for them. And just staying abreast of what the ability is in a particular state. I know that, like I said, embryo creation is a very big part of assistive reproduction.
And so knowing what can happen with the embryos that are created is really important. And that's for the LGBT community because they use sperm donation, egg donation, assist reproduction more than anyone. But like Janine said, it really affects anybody that's looking to providers for assist reproduction assistance.
Wonderful. I want to thank you both for being here today. I know that your time is valuable.
And I just want to again extend our thank you. And I'm sure our listening audience also wants to say thank you so much for taking time out to be with us today. Thank you guys so much.
Thank you so much. And if you would, make sure that you subscribe to the show. Whatever the podcasting means that you do have.
If you have questions for us about this episode or any episode, you can contact us asrm at asrm.org. And until next time, I'm Jeffrey Hayes. And I'm Lowell Coo. And we will see you then.
This is ASRM Today. This concludes this episode of ASRM Today. For show notes, author information, and discussions, go to asrmtoday.org. This material is copyrighted by the American Society for Reproductive Medicine and may not be reproduced or used without express consent from ASRM.
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