Reproductive Innovation and Reproductive Exceptionalism

doi:10.1017/9781009480468.015

11 - Reproductive Innovation and Reproductive Exceptionalism

How Private Health Insurance Coverage of Fertility Treatment Complements Hostile Governmental Action and Expands Access to Assisted Reproduction in the United States

from Part III - Russian Dolls, Reproduction, and Private Law

Published online by Cambridge University Press: 16 March 2025

Myrisha S. Lewis

Edited by

I. Glenn Cohen ,

Susannah Baruch ,

Wendy Netter Epstein ,

Christopher Robertson and

Carmel Shachar

Show author details

I. Glenn Cohen: Affiliation:
Harvard Law School, Massachusetts
Susannah Baruch: Affiliation:
Harvard Law School, Massachusetts
Wendy Netter Epstein: Affiliation:
DePaul University, Chicago
Christopher Robertson: Affiliation:
Boston University
Carmel Shachar: Affiliation:
Harvard Law School, Massachusetts

Book contents

Summary

Insurance coverage can indicate medical acceptance of procedures and products, as well as serve as a proxy for ethical views, social views, and employer views on appropriate health care. This is particularly the case in the realm of reproduction, especially in relation to assisted reproduction and abortion. First, the chapter will provide historical overview of the means in which innovative techniques have acquired “established” status, as indicated by health insurance coverage and for some techniques, the option to obtain federal research funds on the path to becoming established. Second, the chapter will explain the ways in which abortion has been treated differently by insurance plans, especially governmental insurance plans such as Medicaid, as well as Congressional appropriations riders, which have specifically prohibited federal employee health benefit plans from providing coverage for abortions. Third, the chapter will discuss existing state mandates for insurance coverage of fertility treatment with an emphasis on in vitro fertilization. The chapter will then move on to insurance coverage of egg freezing with an emphasis on what are seen as “employee perks” by large companies like Google and Facebook, whose early coverage of egg freezing was covered by the media. More recently, Walmart, Amazon, and a growing number of law firms have been adding egg freezing and in vitro fertilization to their health insurance coverage for employees. Insurance coverage can have a substantial role in normalizing a treatment, especially in the realm of reproductive innovation, and can constitute significant action especially when legislators are actively avoiding a topic.

Keywords

assisted reproduction employee benefits insurance law military health care

Type: Chapter
Information: Health Law as Private Law
Pathology or Pathway
, pp. 136 - 147

DOI: https://doi.org/10.1017/9781009480468.015 [Opens in a new window]

Publisher: Cambridge University Press

Print publication year: 2025
Creative Commons: This content is Open Access and distributed under the terms of the Creative Commons Attribution licence CC-BY-NC 4.0 https://creativecommons.org/cclicenses/

11.1 Introduction

The use of fertility treatment and assisted reproductive technology (ART) in the United States and globally is increasing over time.Footnote ¹ As of April 2023, the World Health Organization estimates that approximately one in six individuals have faced infertility globally.Footnote ² Fertility treatment includes the use of drugs to stimulate egg production, in vitro fertilization (IVF), and, for some, the use of gestational surrogacy to aid in childbirth.Footnote ³ Debates have abounded and continue to abound in federal legislatures, state legislatures, and society more broadly about the morality of abortion, contraception, and assisted reproduction, as well as whether governments, public insurers, and private insurers should facilitate access to these medical treatments.Footnote ⁴ This chapter explains how private health insurance, like public health insurance, can be a catalyst for innovation and societal acceptance. Insurance coverage can be an indication of medically accepted procedures and products, as well as a proxy for ethical views, social views, and employer views on appropriate health care. This is particularly the case in the realm of reproduction, especially in relation to assisted reproduction and abortion.

Fertility treatment is becoming an increasingly routine benefit offered by private employers to their employees through contracts with health insurance providers and fertility benefit providers. Often, the provision of fertility insurance benefits stems from private law, not public law, even when the insurance contracts are entered into and implemented in states with fertility insurance mandates as those state insurance mandates are often preempted by federal law. The chapter proceeds as follows. Section 11.2 will address ART in the United States and the limitations of the few existing state health insurance mandates related to ART. Next, the chapter discusses employer-provided coverage of egg freezing and fertility treatment and the ways in which private law significantly impacts individuals’ decisions related to assisted reproduction. The chapter concludes by considering the relationship between public and private health insurance and the means through which the two may influence each other in ways that lead to expanded insurance coverage of fertility products and procedures.

11.2 Health Insurance and Fertility Exceptionalism

The definition of ART has changed over the years, but this chapter focuses on IVF (the combination of eggs and sperm in the laboratory to create an embryo for implantation), egg freezing or oocyte cryopreservation, and the use of fertility drugs to increase the likelihood of pregnancy or to maximize the availability of eggs.Footnote ⁵ The World Health Organization, American Society for Reproductive Medicine, and American Medical Association consider infertility a disease.Footnote ⁶ Yet in the United States, infertility is not treated as a routine matter whose treatment is covered by insurance plans in the same way as other medical occurrences like high cholesterol, heart attacks, organ transplantation, pregnancy, or broken bones. Part of this aversion to the insurance coverage of fertility treatments stems from the same opposition that accompanies IVF, abortion, and contraception: extensive, often conservative hostility to these treatments based on moral or political views.

Insurance coverage is critical to accessing health care in the United States.Footnote ⁷ The Patient Protection and Affordable Care Act (PPACA) expanded access to health care through reforms such as precluding insurance companies from refusing to cover or requiring higher premiums for individuals with preexisting health conditions, requiring certain employers to provide health insurance coverage meeting minimum essential coverage requirements for their full-time employees or face an “assessable payment,” and the requirement that individuals purchase health insurance or face tax penalties.Footnote ⁸ The “minimum essential health benefits” that insurance plans must cover under the PPACA do not include ART services.Footnote ⁹ Today, private, employer-provided health benefits, which are significantly governed by private law, cover nearly 159 million people in the United States.Footnote ¹⁰

As a preliminary matter, insurance coverage usually does not occur until a technique is recognized as “established” instead of “experimental.”Footnote ¹¹ Often, this recognition is top-down as private insurance companies often follow the coverage and reimbursement decisions of public insurance programs, namely Medicare.Footnote ¹² In 2018, the American Society for Reproductive Medicine (ASRM) announced that “egg freezing,” the colloquial term for “advance oocyte cryopreservation,” was no longer an “experimental” treatment.Footnote ¹³ Even though the ASRM no longer considers egg freezing as “experimental,” most health insurance programs do not include egg freezing as a covered treatment. While egg freezing is no longer considered “experimental,” its success rates are lower than many individuals likely expect.Footnote ¹⁴ Even though it may be covered in certain instances of medically induced infertility such as when individuals become infertile after treatments for various forms of cancer or leukemia, fertility preservation as one waits for a preferred partner or better time in life is often not deemed a covered health insurance procedure in the same way preventive care is.Footnote ¹⁵

The Cleveland Clinic characterizes IVF as “one of the most effective assisted reproductive technologies (ARTs) available.”Footnote ¹⁶ Since the birth of Louise Brown, the first child in the world born as a result of IVF, on July 27, 1978, over 8 million babies have been born as a result of IVF.Footnote ¹⁷ Insurance coverage of fertility treatment is not routine, despite a lengthy effort over the past several decades by many patients, activists, and legislators to normalize medical coverage of fertility treatment.Footnote ¹⁸ As of May 2023, the following states have mandated some form of infertility coverage: Arizona, California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Ohio, Rhode Island, Texas, and West Virginia.Footnote ¹⁹ Maine was added to this list on January 1, 2024.Footnote ²⁰ Yet, coverage mandates vary extensively among states.Footnote ²¹ For example, West Virginia was the first state to include “infertility services” in its list of “basic health services” in 1977, but the statute does not define what “infertility services” that health maintenance organizations (HMOs) are required to cover.Footnote ²² In addition to the lack of statutory definition of “infertility services,” West Virginia enacted its statutory mandate before the birth of Louise Brown.Footnote ²³ As a result, it is likely that the drafters of the statute did not anticipate IVF or egg freezing. Montana’s statute mandating insurance coverage also fails to define what “infertility services” are.Footnote ²⁴ After advocacy by various groups, including RESOLVE: The National Infertility Association (RESOLVE) and the Colorado Fertility Advocates, the Colorado Building Families Act went into effect on January 1, 2022 (with a subsequent amendment effective January 1, 2023 “clarifying” the scope of the bill).Footnote ²⁵ The Colorado Building Families Act requires certain insurance plans to cover egg retrieval and embryo transfers, and the Act specifically mentions “using single embryo transfer when recommended and medically appropriate.”Footnote ²⁶ On May 2, 2022, the Governor of Maine approved H.P. 1144 – L.D. 1539 “An Act To Provide Access to Fertility Care.”Footnote ²⁷ Per the Act, effective January 1, 2024, “the Act applies to all policies, contracts and certificates executed, delivered, issued for delivery, continued or renewed in [Maine] on or after January 1, 2024.”Footnote ²⁸

Moreover, many exceptions exist even when fertility coverage is mandated by state statute. For example, the Colorado Building Families Act has a specific exclusion from coverage for certain religious organizations.Footnote ²⁹ Similar exclusions exist in other states’ statutes.Footnote ³⁰ Furthermore, the scope of fertility coverage is limited. While some states’ “fertility coverage” mandates include IVF (and the cryopreservation often combined with IVF), others simply include diagnosis of infertility and, in many instances, appear to cover contraception or medical sterilization as opposed to fertility drugs or procedures that aim to result in childbirth.Footnote ³¹ Maine’s forthcoming Act allows health plans to enact “reasonable limitations” on their coverage.Footnote ³² Some state health insurance mandates specifically exempt “experimental procedures” from the health benefits that an insurance plan must cover.Footnote ³³ Moreover, state insurance mandates often leave out same-sex couples or single individuals.Footnote ³⁴ For example, three states’ statutes cover IVF but require that women’s eggs be fertilized with their husband’s sperm.Footnote ³⁵ Also, “infertility” is sometimes defined in a manner that requires the individual to have tried to naturally conceive unsuccessfully for a specified period of time.Footnote ³⁶ LGBTQ couples and single individuals are thus often left out of state insurance mandates or individual health insurance policies.Footnote ³⁷

Opponents of insurance coverage of fertility treatments also often emphasize how costly they can be, which could in turn increase insurance premiums.Footnote ³⁸ While surveys have limitations, a survey commissioned by RESOLVE, and carried out by Mercer, a consulting company, revealed that 97 percent of surveyed companies said “that adding infertility coverage did not result in a significant increase in medical plan cost.”Footnote ³⁹ Because of costs, various polities like Ontario and Québec have reconsidered the provision of fertility benefits or limited its availability.Footnote ⁴⁰ Actuarial costs have also motivated insurance companies to reduce costs, which is why insurance companies have incentivized single embryo transfers, for example, so as to minimize the likelihood and significant costs of non-singleton pregnancies and multiple births, which are costlier than singleton pregnancies.Footnote ⁴¹ Generally, insurance coverage does not subsidize unfettered access to fertility treatments, so insurance-covered or publicly provided ART often comes with limitations on access to maximize success rates and minimize costs, including age restrictions, restrictions on the number of covered cycles, restrictions on the number of embryos that can be transferred in a single IVF cycle, and restrictions on the marital status of those who may access the treatments.Footnote ⁴² The restrictions that exist in state insurance mandates as well as insurance policies’ contractual restrictions on access can reduce the costs of ART to health insurance plans.Footnote ⁴³

Many state insurance mandates only apply to employer-sponsored health insurance plans, and grandfathered health plans may be specifically exempted.Footnote ⁴⁴ Beyond these statutory exemptions, as Professors Blake and McCuskey note in this volume, “[the Employee Retirement Income Security Act of 1974] preemption exempts employers who structure their health plans as ‘self-funded’ plans from compliance.”Footnote ⁴⁵ Approximately 65 percent of covered workers were in a self-funded health plan in 2022, and 64 percent in 2021.Footnote ⁴⁶ Due to these coverage exclusions, state insurance mandates for fertility coverage may only apply to 40 to 58 percent of health insurance plans in a state, assuming the state even has a fertility coverage mandate.Footnote ⁴⁷ Yet, in spite of these statutory exceptions and some public opposition to the provision of fertility benefits, many private employers still opt to provide these benefits through health insurance contracts or contracts with fertility benefit providers.Footnote ⁴⁸

11.3 Employer-Sponsored Private Coverage of Fertility Treatment

There is a significant body of literature that focuses on the disparities that exist in access to fertility treatments.Footnote ⁴⁹ These disparities in access to ART include a lack of access to ART and use of it based on race, income, and geographic location.Footnote ⁵⁰ Lack of insurance coverage for fertility treatments exacerbates these disparities. While targeted toward infertile couples, ART has become more appealing to varied groups including those who are not medically infertile, but who use it to reproduce and create families. While there have been a few programs to aid low-income individuals without insurance coverage who are experiencing infertility, assisted reproduction generally requires hefty out-of-pocket spending in the absence of subsidies.Footnote ⁵¹ This renders the actions of individual employers, who decide what nonessential health benefits like fertility coverage will be available to their employees through private health insurance contracts, especially significant to ART accessibility in the United States. Where employer-provided coverage of fertility treatment exists, even in the absence of mandated coverage, disparities still exist.Footnote ⁵²

Competition among employers to attract the most attractive employees can lead to expanded benefits packages for employees as can state insurance mandates.Footnote ⁵³ There are significant disparities in what is covered by employee plans. For example, 24 to 42 percent of surveyed large employers cover IVF, and 23 to 38 percent of the largest employers cover intrauterine insemination.Footnote ⁵⁴ Yet, those plans did not always cover egg freezing, which the technology sector has been a leader in covering for its employees.Footnote ⁵⁵ Among companies with over 500 employees, as of 2020, 27 percent of those employers offer IVF coverage, up from 24 percent in 2015, and 11 percent offer egg freezing, an increase from 2015, when only 5 percent of those companies covered egg freezing.Footnote ⁵⁶ Moreover, fertility providers sometimes provide lists on their websites of local companies providing fertility coverage in their employee benefits packages.Footnote ⁵⁷ These provider lists are in addition to many “crowdsourced” methods, of identifying employers who provide fertility insurance benefits, like Reddit threads and TikTok videos.Footnote ⁵⁸

Some are critical of employer subsidization of egg freezing by noting that it implies that women are expected to delay childbirth and increase labor productivity.Footnote ⁵⁹ Yet, there is no requirement that individuals avail themselves of these employee benefits. Moreover, as those who study the coupling of health insurance and employment note, individuals often move from employer to employer.Footnote ⁶⁰ Therefore, one could take advantage of one employer’s health benefits and move to another employer. Additionally, providing fertility benefits could be beneficial to employers from the perspective of employee retention. A FertilityIQ survey found that “61% of employees who received fertility coverage from an employer said they felt more loyal and committed to the company … [and] 88% of women who had IVF treatment fully paid for by their employer chose to return to that employer after maternity leave, compared to around 50% of the regular population without fertility benefits.”Footnote ⁶¹ Similarly, 62 percent of surveyed companies found that offering infertility coverage aided them in “staying competitive and attracting and retaining talent.”Footnote ⁶²

Employer-provided fertility benefits offer a subsidy to those who otherwise may not have the funds on hand to finance assisted reproduction. Thus, employer-sponsored reproduction can save these individuals from the fates of many others who pursue assisted reproduction, which includes depleting their savings, taking out loans, or having no means to pay at all.Footnote ⁶³ For example, a cycle of IVF without fertility drugs is estimated to cost between US$12,000 and US$17,000; the cost with fertility drugs raises the estimated cost to US$25,000.Footnote ⁶⁴ Egg retrieval and freezing is estimated to cost between US$15,000 and US$25,000.Footnote ⁶⁵ Storing frozen eggs can cost up to US$800 per year, and storing banked sperm costs between US$100 and US$500 per year.Footnote ⁶⁶

In the wake of health care reform, economic downturns, and social change, the disadvantages of having health insurance and other leave inextricably connected to employment and marriage have become more apparent.Footnote ⁶⁷ Subsidized access to fertility treatments is often provided through a third-party provider, as opposed to the standard employee health insurance plan.Footnote ⁶⁸ For example, shortly after Elon Musk’s purchase of Twitter, news coverage focused on how Twitter’s layoffs stymied employee access to Carrot, a fertility benefits provider.Footnote ⁶⁹ One individual who was fired from Twitter stated that “… she would have left the company [a year earlier] if it weren’t for the fertility treatment benefit, and she was promised health benefits would continue a year after any takeover. In the end, she had one week.”Footnote ⁷⁰ Thus, the disadvantages of employer-sponsored health insurance coverage may also accompany employer-sponsored fertility benefits.

The focus of this volume is on private law, but there is a relationship between private health coverage and public health coverage. Lessons and practices are often exchanged between private and public health insurance companies. Private health insurance drug formularies generally cover, at a minimum, for example, drugs covered by public health insurance programs. There are many entities in the federal government that provide health care and health insurance, including Medicare, the Federal Employees Health Insurance Benefit Plan, TRICARE, the Indian Health Service, and the US Department of Veterans Affairs. While private law may not aid those individuals directly, the innovations of private health insurance can directly influence public health programs. For example, while Utah does not have a fertility insurance mandate, the Centers for Medicare and Medicaid Services approved Utah’s 2020 application for a waiver to permit the state to “provide in vitro fertilization services and genetic testing for Medicaid eligible individuals who have one of the following conditions: Cystic fibrosis, spinal muscular atrophy, Morquio syndrome, myotonic dystrophy, or sickle cell anemia.”Footnote ⁷¹ A subsequent five-year waiver renewal application was approved until June 30, 2027.Footnote ⁷²

Despite the lack of a federal mandate for health insurance reform to include fertility preservation, there is a notable federal exception: certain wounded servicemembers. Despite years of debate about whether Congress should mandate coverage of fertility treatment for federal civilian employees, specifically, and the public, more broadly, in 2016, Congress authorized the Department of Defense to expand coverage of or directly provide ART services to certain categories of veterans and enlisted personnel, namely those with service-related injuries.Footnote ⁷³ Some veterans with service-related conditions that have resulted in infertility are eligible for ART services, yet those ART services do not cover donor gametes, gestational surrogacy, or unmarried individuals.Footnote ⁷⁴ Former Secretary of Defense, Ashton Carter, was “inspired during visits to Silicon Valley” to create Initiative #35, “Egg and Sperm Cryopreservation,” that would permit deploying service members to freeze their gametes before deploying although ultimately Initiative #35 was never funded.Footnote ⁷⁵ In the meantime, members of Congress continue to introduce legislation to expand access to ART for servicemembers although the provisions are routinely curtailed by conservative opposition.Footnote ⁷⁶ Additionally, military family advocate groups use their own money to subsidize ART access for active-duty Special Forces personnel.Footnote ⁷⁷ In the summer of 2023, two lawsuits were filed against the Department of Defense and Department of Veterans Affairs on behalf of current and retired servicemembers who were excluded from ART coverage based on the agencies’ restrictive policies.Footnote ⁷⁸ In January 2024, Judge Caproni issued a 90-day stay of some of the claims in the New York case in order to give the Department of Defense and Department of Veterans Affairs time to finalize changes to their IVF health insurance coverage policies.Footnote ⁷⁹ These policy changes are expected to increase the number of individuals who could access covered IVF treatments by modifying the requirement that those accessing covered IVF services be in an opposite-sex marriage as well as permitting the use of donor gametes in certain instances. Private health insurance programs can influence public health insurance programs and mitigate conservative political views in a way that expands access to fertility treatments.

11.4 Conclusion

Insurance coverage can have a substantial role in normalizing a treatment, especially in the realm of reproductive innovation. Moreover, views about “necessity” can change. The routine health insurance coverage of childbirth expenses is something that started and evolved over approximately the past thirty years.Footnote ⁸⁰ Similarly, in October 2023, the American Society of Reproductive Medicine issued a “new, more inclusive” definition of infertility that specifically includes individuals “regardless of relationship status or sexual orientation.” It is possible that the new definition of infertility may be incorporated into future legislation or private insurance contracts.Footnote ⁸¹ Private health insurance or other subsidized coverage can constitute significant action, especially when legislators are actively avoiding a topic by failing to introduce or consider legislation or policies that could further it. Private coverage of fertility treatment aids in the normalization of ART in the United States, which may ultimately overcome moral and political opposition to the use of and funding of assisted reproduction more broadly in the United States.

Footnotes

¹ IVF (In Vitro Fertilization), Cleveland Clinic (Mar. 2, 2022), https://my.clevelandclinic.org/health/treatments/22457-ivf.

² World Health Organization, Infertility Prevalence Estimates, 1990–2021 13 (2023).

³ John A. Robertson, Gay and Lesbian Access to Assisted Reproductive Technology, 55 Case W. Rsrv. L. Rev. 323, 324–25 (2004).

⁴ See, e.g., Greer Donley & Jill Wieber Lens, Abortion, Pregnancy Loss, & Subjective Fetal Personhood, 75 Vand. L. Rev. 1649, 1652–53 (2022); Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022); Social and Moral Considerations on Abortion, Pew Rsch. Ctr. (May 6, 2022), https://www.pewresearch.org/religion/2022/05/06/social-and-moral-considerations-on-abortion/; Burwell v. Hobby Lobby, 573 U.S. 682 (2014).

⁵ What Is Assisted Reproductive Technology?, Ctrs. for Disease Control & Prevention (Oct. 8, 2019), http://www.cdc.gov/art/whatis.html; Fertility Medications, Am. Pregnancy Ass’n (2024), https://americanpregnancy.org/getting-pregnant/fertility-medications/.

⁶ Sara Berg, AMA Backs Global Health Experts in Calling Infertility a Disease, Am. Pregnancy Ass’n (June 13, 2017), https://www.ama-assn.org/delivering-care/public-health/ama-backs-global-health-experts-calling-infertility-disease.

⁷ Inst. of Med., Care Without Coverage: Too Little, Too Late 1–3 (2002); Health Insurance and Access to Care, Nat’l Ctr. for Health Statistics (Feb. 2017), https://www.cdc.gov/nchs/data/factsheets/factsheet_hiac.pdf.

⁸ 26 U.S.C. § 4980H (2022); Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 530 (2012).

⁹ See, e.g., Inst. of Med., Clinical Preventive Services for Women: Closing the Gaps 109–10 (2011); Women’s Preventive Services Guidelines, Health Res. & Servs. Admin., https://www.hrsa.gov/womens-guidelines.

¹⁰ Gary Claxton et al., Employer Health Benefits: 2022 Annual Survey 156 (Kaiser Fam. Found. ed., 2022), https://files.kff.org/attachment/Report-Employer-Health-Benefits-2022-Annual-Survey.pdf.

¹¹ Tips to Help You Appeal an Experimental or Investigational Service Denial by Your Insurance Company, Va. State Corp. Comm’n, https://scc.virginia.gov/getattachment/a13ac2b5-efb6-4d1a-a1b5-a76bfbaa4a86/exptips.pdf.

¹² See, e.g., Jeffrey Clemens & Joshua D. Gottlieb, In the Shadow of a Giant: Medicare’s Influence on Private Physician Payments, 125 J. Polit. Econ. 1, 31–32 (2017); 45 C.F.R. § 156.122 (2023); Tom Murphy, Insurers Won’t Cover New Alzheimer’s Treatment for Some Customers, ABC News (Aug. 11, 2023, 10:11 AM), https://abcnews.go.com/Health/wireStory/insurers-cover-new-alzheimers-treatment-customers-102197604.

¹³ Ethics Comm. of the Am. Soc’y for Reprod. Med., Planned Oocyte Cryopreservation for Women Seeking to Preserve Future Reproductive Potential: An Ethics Committee Opinion, 110 Fertility and Sterility 1022 (2018).

¹⁴ Age and Fertility, Am. Soc. for Reprod. Med. 4 (2012), https://www.asrm.org/globalassets/rf/news-and-publications/bookletsfact-sheets/english-fact-sheets-and-info-booklets/Age_and_Fertility.pdf.

¹⁵ See, e.g., 27 R.I. Gen. Laws § 27-18-30; 27 R.I. Gen. Laws § 27-20-20 (coverage for infertility).

¹⁶ Cleveland Clinic, supra Footnote note 1.

¹⁷ Footnote Id.

¹⁸ Insurance Coverage by State, RESOLVE: The Nat’l Infertility Assoc. (June 2023), https://resolve.org/learn/financial-resources-for-family-building/insurance-coverage/insurance-coverage-by-state/.

¹⁹ Footnote Id. (Louisiana’s statute, for example, specifically mentions ART but does not require insurers to cover ART. La. Stat. § 22:1036. Prohibited exclusion of coverage of correctable medical conditions on basis of infertility); see also Pavel Zagadailov et al., Do State Insurance Mandates Alter ICSI Utilization?, 18 Reprod. Biol. & Endocrinology 33 (2020), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7183130/.

²⁰ An Act to Provide Access to Fertility Care, 2022 Me. Laws ch. 692 (codified at 24-A.M.R.S.A. § 4320-S), http://www.mainelegislature.org/legis/bills/getPDF.asp?paper=HP1144&item=5&snum=130.

²¹ See, e.g., I. Glenn Cohen & Daniel Chen, Trading-Off Reproductive Technology and Adoption: Does Subsidizing IVF Decrease Adoption Rates and Should It Matter?, 95 Minn. L. Rev. 485, 503–09 (2010).

²² Benjamin J. Peipert et al., Impact of In Vitro Fertilization State Mandates for Third Party Insurance Coverage in the United States: A Review and Critical Assessment, 20(1) Reprod. Biology & Endocrinology, no. 111 (2022), at 1–2; W. Va. Code § 33-25A-2 (defining “basic health services” as including “infertility services” but providing no definition of “infertility services”); RESOLVE: The Nat’l Infertility Assoc., supra Footnote note 18; see, e.g., Del. Code Ann. tit. 18 § 3556(i)(6); Tex. Ins. Code Ann. § 1366.006.

²³ Press Release, The Nobel Prize, The Nobel Prize in Physiology or Medicine 2010 to Robert G. Edwards (Oct. 4, 2010), https://www.nobelprize.org/prizes/medicine/2010/press-release/; Louise Brown, Louise Brown on 40 Years of IVF: I Was the World’s First IVF Baby, This Is My Story, The Independent (July 25, 2018), https://www.independent.co.uk/life-style/health-and-families/ivf-baby-louise-brown-story-test-tube-world-first-40th-anniversary-a8455956.html.

²⁴ See, e.g., Mont. Code Ann. § 33-31-102.

²⁵ Colorado Insurance Law, RESOLVE: The Natl’ Infertility Assoc., https://resolve.org/learn/financial-resources-for-family-building/insurance-coverage/colorado-insurance-law/; Good News for Coloradans in Need of Fertility Treatment, Yahoo News (Nov. 17, 2022), https://www.yahoo.com/now/good-news-coloradans-fertility-treatment-200000874.html.

²⁶ Colo. Rev. Stat. § 10-16-104(b).

²⁷ 2022 Me. Laws ch. 692, supra Footnote note 20.

²⁸ Me. Stat. tit. 24A, § 4320-U (2024), https://legislature.maine.gov/statutes/24-A/title24-Asec4320-U.html.

²⁹ Colo. Rev. Stat. § 10-16-104(e) (“A religious employer may request and a carrier subject to this subsection (23) shall grant an exclusion from the coverage required under this subsection (23) in a health benefit plan if the required coverage conflicts with the religious organization’s bona fide religious beliefs and practices”).

³⁰ Cal. Health & Safety Code § 1374.55(e); 18 Del. C. § 3556 (i)(5); N.J. Stat. Ann. § 17:48-6x.

³¹ See generally RESOLVE: The Nat’l Infertility Assoc., supra Footnote note 18.

³² 2022 Me. Laws ch. 692, supra Footnote note 20.

³³ Ohio Rev. Code § 1751.01 (West) (“‘Basic health care services’ does not include experimental procedures”); §4320-U, supra Footnote note 28 (noting that a carrier is not required to provide coverage for “any experimental fertility procedure”).

³⁴ The Ethics Comm. of the Am. Soc’y for Reprod. Med., Disparities in Access to Effective Treatment for Infertility in the United States: An Ethics Committee Opinion, 116 Fertility and Sterility 52, 57 (2021).

³⁵ See Peipert et al., supra Footnote note 22, at 3 (citing the fertility coverage mandates in Arkansas, Hawaii, and Texas).

³⁶ See, e.g., Daniel Basco et al., Insuring against Infertility: Expanding State Infertility Mandates to Include Fertility Preservation Technology for Cancer Patients, 38 J.L. Med. & Ethics 832 (2010).

³⁷ Peipert et al., supra Footnote note 22, at 3; see also Gabriela Weigel et al., Coverage and Use of Fertility Services in the U.S., Kaiser Fam. Found. (Sept. 15, 2020), https://www.kff.org/womens-health-policy/issue-brief/coverage-and-use-of-fertility-services-in-the-u-s/; The Ethics Comm. of the Am. Soc’y for Reprod. Med., supra Footnote note 34.

³⁸ Me. Bureau of Ins., Concerning LD 1539: An Act to Provide Access to Fertility Care to the Committee on Health Coverage, Insurance, and Financial Services, 131st Legis. (Jan. 2023), https://legislature.maine.gov/doc/9670#:~:text=L.D; The Ethics Comm. of the Am. Soc’y for Reprod. Med., supra Footnote note 34.

³⁹ 2021 Survey on Fertility Benefits, Mercer (Jan. 2021), https://resolve.org/wp-content/uploads/2022/01/2021-Fertility-Survey-Report-Final.pdf.

⁴⁰ Alana Cattapan, Medical Necessity and the Public Funding of In Vitro Fertilization in Ontario, 53 Can. J. Pol. Science 61, 61–62, 68–71 (2020); Free In-Vitro Fertilization Treatment Is Back in Quebec, But There Are Restrictions, Can. Broadcasting Corp. News (Nov. 10, 2021, 2:17 PM), https://www.cbc.ca/news/canada/montreal/in-vitro-fertilization-funded-public-1.6244008. But see B.C. Could Save $78 Million by Funding In Vitro Fertilization, Can. NewsWire (Feb. 4, 2013, 8:45 AM), https://www.newswire.ca/news-releases/bc-could-save-78-million-by-funding-in-vitro-fertilization-511915581.html.

⁴¹ See, e.g., Peipert et al., supra Footnote note 22, at 2, 4; Georgina M. Chambers et al., Funding and Public Reporting Strategies for Reducing Multiple Pregnancy from Fertility Treatments, 114 Fertility and Sterility 715 (2020); Public Funding for IVF Will Save Alberta Health Care System Millions, Can. NewsWire (May 22, 2012), https://www.newswire.ca/news-releases/public-funding-for-ivf-will-save-alberta-health-care-system-millions-510263821.html.

⁴² See, e.g., Dep’t of Health, Minister for Health Announces Full Funding for Assisted Human Reproduction Treatment from September, Gov. of Ir., https://www.gov.ie/en/press-release/c2e96-minister-for-health-announces-full-funding-for-assisted-human-reproduction-treatment-from-september/ (last accessed July 27, 2023); in-vitro Fertilization Will Once Again Be Free for Quebec Couples, but Only for One Cycle, Can. Broadcasting Corp. News (Nov. 11, 2020, 1:21 PM), https://www.cbc.ca/news/canada/montreal/quebec-public-ivf-1.5798240. On the other hand, fertility coverage can be expansive in terms of eligible groups. See Cattapan, supra Footnote note 40; see also Peipert et al., supra Footnote note 22.

⁴³ See, e.g., Private Health Insurance Premiums and Federal Policy, Congressional Budget Off. 6–7 (Feb. 2016), https://www.cbo.gov/sites/default/files/114th-congress-2015-2016/reports/51130-Health_Insurance_Premiums.pdf.

⁴⁴ N.Y. Comp. Codes R. & Regs. tit. 11, § 52.71; see generally State and Territory Infertility Insurance Laws, Am. Soc’y Reprod. Med., https://www.reproductivefacts.org/resources/state-infertility-insurance-laws/ (last accessed Apr. 23, 2023).

⁴⁵ See Chapter 10 in this volume.

⁴⁶ Claxton et al., supra Footnote note 10, at 156.

⁴⁷ Mercer, supra Footnote note 39; Health Insurance Coverage of the Total Population, Multiple Sources of Coverage, Kaiser Fam. Found. (2021), https://www.kff.org/other/state-indicator/health-insurance-coverage-of-the-total-population-multiple-sources-ofcoverage/?currentTimeframe=0&sortModel=%7B%22colId%22:%22Location%22,%22sort%22:%22asc%22%7D.

⁴⁸ Megan Cerullo, The Latest Employee Benefit? Helping Workers Have Babies, CBS News (Feb. 21, 2022, 6:00 AM), https://www.cbsnews.com/news/fertility-reproductive-benefits-important-for-recruitment-inclusion/; Megan Carnegie, More Companies Offer Fertility Benefits. It’s Only the Beginning, Wired (Dec. 1, 2021), https://www.wired.com/story/fertility-benefits-work/; Kate Beioley, Law Firms Cooley and Clifford Chance Offer UK Staff Fertility Benefits for First Time, Fin. Times (June 13, 2021), https://www.ft.com/content/d0efaee1-8848-4971-894e-e5db44881c9c.

⁴⁹ See, e.g., The Ethics Comm. of the Am. Soc’y for Reprod. Med., supra Footnote note 34, at 56; Ada C. Dieke et al., Disparities in Assisted Reproductive Technology Utilization by Race and Ethnicity, United States, 2014: A Commentary, 26(6) J. Women’s Health (Larchmt) 605 (June 2017), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5548290/pdf/nihms886177.pdf.

⁵⁰ The Ethics Comm. of the Am. Soc’y for Reprod. Med., supra Footnote note 34, at 56 (“… even in states with comprehensive infertility mandates, infertility care still is used disproportionately by non-Hispanic white women of high socioeconomic and educational status”).

⁵¹ Kara W. Swanson, Adultery by Doctor: Artificial Insemination, 1890–1945, 87 Chi.-Kent L. Rev. 591, 614 (2012) (citing instances where lower-income individuals received artificial insemination services through “the public Sterility Clinic of the New York Hospital” and a physician in Brookline, Massachusetts) (citations omitted).

⁵² See, e.g., Isabel Galic et al., Disparities in Access to Fertility Care: Who’s In and Who’s Out, 2 F&S Reps. 2666 (2021); Tarun Jain & Mark D. Hornstein, Disparities in Access to Infertility Services in a State with Mandated Insurance Coverage, 84 Fertility and Sterility 221, 222 (2005); Eve C. Feinberg et al., Economics May Not Explain Hispanic Underutilization of Assisted Reproductive Technology Services, 88 Fertility and Sterility 1439, 1440 (2007).

⁵³ See, e.g., Julia La Roche, Goldman Sachs to Give All New Parents 20 Weeks Paid Leave, Yahoo News (Nov. 4, 2019), https://finance.yahoo.com/news/goldman-sachs-to-give-all-new-parents-20-weeks-paid-leave-152722590.html.

⁵⁴ Mercer, supra Footnote note 39, at 6.

⁵⁵ See, e.g., Ali L. Nicolette, Empty Benefits: Employer-Sponsored Oocyte Cryopreservation and Potential for Employment Discrimination, 27 Hastings Women’s L.J. 341 (2016).

⁵⁶ Karen Gilchrist, Egg Freezing, IVF and Surrogacy: Fertility Benefits Have Evolved to Become the Ultimate Workplace Perk, CNBC (Mar. 14, 2022, 2:43 AM EDT, updated Oct. 4, 2022, 9:38 PM EDT), https://www.cnbc.com/2022/03/14/egg-freezing-ivf-surrogacy-fertility-benefits-are-the-new-work-perk.html.

⁵⁷ See, e.g., The Growing List of Companies Offering Fertility Benefits, RADfertility, https://radfertility.com/does-my-company-provide-ivf-coverage/.

⁵⁸ Leticia Miranda & Louise Matsakis, Some Starbucks Workers Forgo Paychecks to Access IVF Treatments, NBC News (Mar. 27, 2022, 6:00 AM EDT, updated Mar. 28, 2022, 6:26 AM EDT), https://www.nbcnews.com/business/starbucks-workers-forgo-paychecks-access-ivf-treatments-rcna16381#; Luz Pena, Bay Area Woman Travels to Spain to Freeze Eggs, ABC News (July 20, 2019), https://abc7news.com/ovally-fertility-spain-bay-area-travel/5407303; Cara Hutto, 57 Companies That Offer Awesome Fertility Benefits, InHerSight (Sept. 24, 2021, updated Sept. 23, 2022), https://www.inhersight.com/blog/parenting/companies-with-fertility-benefits; see, e.g., Reddit, Anyone Have a Copy of the FertilityIQ Workplace Index?!, https://www.reddit.com/r/stilltrying/comments/quogma/anyone_have_a_copy_of_the_fertilityiq_workplace/; Reddit, Infertility, Pregnancy Loss, and Trouble Conceiving Community, https://www.reddit.com/r/infertility/.

⁵⁹ Gilchrist, supra Footnote note 56.

⁶⁰ June Carbone & Naomi Cahn, Uncoupling, 53 Ariz. St. L. J. 1, 33 (2021).

⁶¹ Gilchrist, supra Footnote note 56; Ann Carrns, Tech Companies Get High Marks for Covering Infertility Treatments, N.Y. Times (Nov. 15, 2017), https://www.nytimes.com/2017/11/15/your-money/infertility-treatment-coverage.html.

⁶² Mercer, supra Footnote note 39, at 7.

⁶³ Melissa B. Jacoby, The Debt Financing of Parenthood, 72 L. and Contemp. Probs. 147, 147–48, 150–51, 157–58 (2009).

⁶⁴ Amy Klein, I.V.F. Is Expensive. Here’s How to Bring Down the Cost, N.Y. Times (Apr. 18, 2020), https://www.nytimes.com/article/ivf-treatment-costs-guide.html (citing Nat’l Conf. State Legislatures, State Laws Related to Insurance Coverage for Infertility Treatment (Mar. 12, 2021), https://www.ncsl.org/research/health/insurance-coverage-for-infertility-laws.aspx).

⁶⁵ Pena, supra Footnote note 58.

⁶⁶ Alyssa Jeong Perry & Audrey Nguyen, How to Decide If Freezing Your Eggs Is Right for You – And Where to Get Started, NPR (Dec. 21, 2022, 1:31 PM ET), https://www.npr.org/2021/11/18/1056834875/egg-freezing-process-how-much-does-it-cost; Amin Sedaghat Herati, Sperm Banking, Hopkins Med., https://www.hopkinsmedicine.org/health/treatment-tests-and-therapies/sperm-banking.

⁶⁷ See, e.g., Carbone & Cahn, supra Footnote note 60; Emma Goldberg & Tripp Mickle, When Having a Baby and Losing Your Job Collide, N.Y. Times (Feb. 9, 2023), https://www.nytimes.com/2023/02/09/business/layoffs-parental-leave.html.

⁶⁸ Carnegie, supra Footnote note 48.

⁶⁹ Chris Stokel-Walker, They Wanted a Baby Then Twitter Fired Them, WIRED (Nov. 25, 2022, 7:00 AM), https://www.wired.com/story/twitter-layoffs-health-benefits-ivf/; Carrot, Home Page, https://www.get-carrot.com.

⁷⁰ Stokel-Walker, supra Footnote note 69.

⁷¹ See Letter from Emma Chacon to Seema Verma (Dec. 30, 2020), https://medicaid.utah.gov/Documents/pdfs/1115AmendmentInVitro.pdf (Utah 1115 Primary Care Network Demonstration Waiver Amendment Request In Vitro Fertilization and Genetic Testing for Qualified Conditions, Demonstration Project Nos. 11-W-00145/8 and 21-W-00054/8); see also Utah Code § 26-18-420.

⁷² Letter from Spencer J. Cox to Javier Becerra (June 30, 2021), https://medicaid.utah.gov/Documents/pdfs/Utah%201115%20Waiver%20Renewal-combined%20draft.pdf; Letter from Jennifer Strohecker to Chiquita Brooks-LaSure (July 7, 2022), https://www.medicaid.gov/sites/default/files/2022-07/ut-pcn-state-accept-ltr-07112022_0.pdf.

⁷³ See, e.g., Associated Press, Abortion Arguments at Play in Limiting Veterans’ IVF Benefit, NBC News (July 8, 2019), https://www.nbcnews.com/health/health-care/abortion-arguments-play-limiting-veterans-ivf-benefit-n1027461; Congress Passes Bill to Help Wounded Veterans Start Families, PR Newswire (Sept. 29, 2016, 10:52 ET), https://www.prnewswire.com/news-releases/congress-passes-bill-to-help-wounded-veterans-start-families-300336557.html; Community Care: In Vitro Fertilization Treatment, U.S. Dep’t of Veterans Affs., https://www.va.gov/COMMUNITYCARE/programs/veterans/ivf.asp (last accessed Sept. 29, 2023).

⁷⁴ U.S. Dep’t of Veterans Affs., supra Footnote note 73.

⁷⁵ Patricia Kime, Military’s New Fertility Benefit Will Let Troops Freeze Their Sperm and Eggs, Military Times (Jan. 29, 2016), https://www.militarytimes.com/pay-benefits/military-benefits/health-care/2016/01/29/military-s-new-fertility-benefit-will-let-troops-freeze-their-sperm-and-eggs/; Report to Congressional Armed Services Committees on Force of the Future Pilot Program on Cryopreservation of Gametes, Dep’t of Defense 2 (Feb. 2, 2018).

⁷⁶ See, e.g., Press Release, U.S. Senator Tammy Duckworth, Duckworth, Murray, Larsen, Jacobs Reintroduce Legislation to Expand Fertility Treatments, Help Veterans Start Families (Sept. 15, 2023), https://www.duckworth.senate.gov/news/press-releases/duckworth-murray-larsen-jacobs-reintroduce-legislation-to-expand-fertility-treatments-help-veterans-start-families; Patricia Kime, Nonprofits Are Filling a Void of Fertility Help for Service Members, But Hope Congress Steps Up, Military.com Network (June 29, 2022), https://www.military.com/daily-news/2022/06/29/nonprofits-are-filling-void-of-fertility-help-service-members-hope-congress-steps.html.

⁷⁷ Kime, supra Footnote note 76.

⁷⁸ Complaint, Nat’l Org. for Women-New York City v. U.S. Dep’t of Defense et al., Case 1:23-cv-06750 (S.D.N.Y. 2023); Complaint, Ashley Sheffield v. U.S. Dep’t of Veterans Affairs, Civil Case No. 23-11757 (D. Mass. 2023).

⁷⁹ Memo Endorsement, Nat’l Org. for Women-New York City v. U.S. Dep’t of Defense et al., Case 1:23-cv-06750 (S.D.N.Y. Jan. 2, 2024).

⁸⁰ See Elissa Strauss, 40 Years Later, Why Is IVF Still Not Covered by Insurance? Economics, Ignorance, and Sexism, CNN (July 25, 2018), https://www.cnn.com/2018/07/25/health/ivf-insurance-parenting-strauss/index.html; 29 U.S.C. § 1185.

⁸¹ ASRM Publishes a New, More Inclusive Definition of “Infertility”, Am. Soc. for Reprod. Med. (Oct. 15, 2023), https://asrmcongress.org/asrm-publishes-a-new-more-inclusive-definition-of-infertility/.