31 Jan 2022 Is Fertility Treatment A Human Right?
As assisted reproductive technology (ART) becomes an increasingly common and accepted way of creating families, a growing movement calls for ART to be available to anyone who needs it, regardless of sexual orientation, gender identity or marital status. But does the legal “right to procreate,” established decades ago in U.S. and international law, include the right to leading-edge fertility treatments such as egg donation, in vitro fertilization and cryopreservation? If so, who has the right to use those technologies, under what circumstances, and who pays for them? With the ongoing challenge to women’s abortion rights at the U.S. Supreme Court, the debate over human reproductive rights is just getting started.
Modern reproductive technology makes it possible for couples experiencing infertility, same-sex couples and single people to become biological parents. But laws governing reproduction and family establishment, and on which modern case law rests, were established long before assisted reproduction technologies were in common use.
War led to establishment of human right to procreate
Following World War II, the European Convention on Human Rights codified humans’ right to establish families free from coercion by or interference from the government, in response to forced sterilizations carried out by the Nazi regime. The law banned the state from preventing procreation through sterilization and from forcing people to procreate by denying access to contraception. Thus the human right to establish a family was a reproductive right.
In the United States, the Supreme Court first established the right to procreate under the 14th Amendment to the U.S. Constitution in 1942, in Skinner v. Oklahoma, in which it overturned a state law requiring the forced sterilization of some habitual criminals. The right to procreate was reinforced in decisions over the years, including establishing the rights of married people (1965) and single people (1972) to have information about and access to contraceptives. In its historic 2015 decision in Obergefell v. Hodges, which legalized same-sex marriage in the United States, the Supreme Court ruled that married same-sex couples must receive the same rights and privileges as heterosexual couples under the law.
But much has changed in the years since the right to procreate was established. Then, “family” was understood to mean a married man and woman with one child or more; today, a “family” might be a single parent or a same-sex couple with children or an unmarried straight couple.
And the means for creating a family have changed, expanding to include medical interventions ranging from hormone treatment to egg harvesting, IVF and surrogacy. Then, the right to procreate meant the right to reproduce, without interference from the government, via sexual intercourse. Now that we have the ability to make babies using reproductive technology, should everyone have the same right to utilize that technology?
Improved reproductive technology drives costs down
Emerging healthcare technologies tend to be costly; assisted reproductive technologies are no exception. But several trends are acting to push costs down. One is simply the improvement of the technology with time and frequency. When my husband and I began the process of becoming dads to twin boys using egg donation, IVF and surrogacy, it was not uncommon to implant multiple embryos per cycle, in order to up the odds that at least one would survive. Fourteen years later, and success rates have improved so much that the accepted best practice is to implant just one embryo at a time—safer for both surrogate and baby than risking a multiple birth. The improved success rate of the procedure also means fewer attempts, potentially saving intended parents thousands of dollars per round.
Another trend putting downward pressure on costs is the growing availability of insurance coverage for fertility services.
As reproductive technology became more reliable, cost-effective and accessible, many companies began offering fertility insurance coverage as an employee benefit. In recent years, many companies have added fertility preservation and other reproductive health services as an employee perk and recruitment tool, particularly appealing to millennials who may want to delay parenthood in pursuit of career goals. In 2018, 44 percent of U.S. companies employing more than 20,000 peoples offered some IVF benefits in 2018, up from 37 percent in 2017, according to Benefit News.
According to RESOLVE (The National Infertility Association), at least 19 states have passed laws requiring insurers to provide or offer some type of coverage for infertility treatment.
But even those limited measures often fall short of providing equal access to all employees, thanks to outdated institutional definitions of “infertility” that discriminate against singles and gay men. For example, Illinois’ Fertility Mandate requires that all group insurance policies covering more than 25 people must include infertility screening and treatment. But the criteria for eligibility rely on a definition of infertility—“the inability to get pregnant after one year of unprotected sex or the inability to carry a pregnancy to term”—that seems to eliminate lesbian and gay couples. Even in states where fertility coverage is mandated, an individual’s ability to access the benefit often depends on the policies of each insurer.
Affordable access to reproductive technology is not a fringe issue. According to the U.S. National Institutes for Health, approximately 9 percent of men and 11 percent of women of reproductive age—some 66 million Americans—have dealt with some type of fertility impairment.
Movement for reproductive equality grows
As The New York Times reported in December 2020, a growing number of advocates say that access to such essential, life-affirming treatment should be available to everyone, regardless of gender, sexual orientation or bank account. “This is about society extending equality to its final and logical conclusion,” Ron Poole-Dayan, founder and executive director of New York parenting organization Men Having Babies, told the Times. “True equality doesn’t stop at marriage. It recognizes the barriers LGBTs face in forming families and proposes solutions to overcome these obstacles.”
Historical, near-universal definitions of infertility reflect a “very hetero-centric viewpoint,” Catherine Sakimura of the National Center for Lesbian Rights told the Times. “We must shift our thinking so that the need for assisted reproductive technologies is not a condition, but simply a fact.”
Those advocating for fertility equality are asking that insurers cover procedures such as sperm and egg donation and IVF for all intended parents, whether they are heterosexual and married, a same-sex couple or a single person using a surrogate. Some young activists consider access to reproductive technologies an issue of social equity, potentially reserving the right to procreate for those who can pay for it and effectively disenfranchising young, low-income intended parents for whom treatment is financially out of reach.
One of the things I love about fertility law is that it is constantly evolving, just as assisted reproductive technology is constantly evolving, becoming more reliable, more cost-effective and more prevalent with each scientific advance. We still live in a world where some people cannot afford or do not have access to computers, even as our communal lives and economies are increasingly carried out online. But we also live in a world where governments are increasingly investing in broadband access as a public utility in order to extend online access to more people. Similarly, I am optimistic we as a society will eventually expand the access to reproductive technology, so that everyone has an equal opportunity to benefit.
