A system of Catholic hospitals based in Illinois has decided it will only cover fertility treatments for a worker who is in an opposite-sex marriage. Some lawyers say the policy could conflict with federal laws on discrimination. More than 24,000 employees work for the hospital system.

The hospital’s parent company is using the CDC definition of infertility, which is an inability to become pregnant after having unprotected sex for one year. Since same-sex couples can’t create a pregnancy through sexual activity with one another, the argument from the hospital system is that they don’t meet the actual infertility guidelines.

The policy of only paying for infertility treatments for workers in opposite-sex relationships is, according to OSF HealthCare, designed to assist married couples in opposite-sex partnerships to have children. With the limited benefits, the policy is among the first instances of an employer rejecting a particular type of treatment based on the employee’s sexual orientation.

Several attorneys who were asked about the wording in the policy have stated that they see clear violations of anti-discrimination laws. There are some exemptions in the law for employees of religious schools, but there is really no significant precedent for religiously affiliated medical facilities.

The Sisters of the Third Order of St. Francis owns and operates OSF. According to a company spokesperson, the employee benefits are driven by OSF’s mission, and are in compliance with religious and ethical directives for Catholic healthcare services, as well as state and federal laws.

However, not all employees and attorneys agree that OSF has the right to completely excluded same-sex married couples from infertility treatments via the company’s health plan. Right now, there haven’t been any public challenges to the policy from OSF employees. However, it’s possible that there will be challenges in the future. The issue is outside of Illinois law because the plan is funded by the health system, based on the company’s religious beliefs.

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