29 Mar 2021 New Tennessee Fertility Insurance Bill is Pro-Family

Tennessee is on track to pass a law requiring insurers to cover treatment for infertility, joining 19 other U.S. states that mandate coverage for either fertility treatment such as IVF or for “fertility preservation” services for patients with cancer or other severe disease.

The Tennessee Pro-Family Building Act (SB 425/HB 1379), if enacted into law, would require Tennessee insurance plans by 2023 to cover the diagnosis of infertility, fertility treatment including medications, and medically necessary fertility preservation services, such as cryopreservation of eggs or sperm.

Some 17 percent of Tennesseans of reproductive age will be diagnosed with infertility and require treatment in order to reproduce, according to a report by WMC Action News 5. Without insurance coverage, cost of treatment can spiral. “More than half of patients ages 25-34 incur about $10,000 in debt, and 26 percent of those have more than $30,000 in debt by paying for treatment costs,” The Daily Memphian reported.

Supporters of the new legislation say the impact on insurance premiums is expected to be minimal. For example, after Massachusetts passed similar legislation, insurance premiums in that state rose less than 1 percent, according to The Memphian article.

Sponsored by two Republicans, Becky Massey (R-Knoxville) in the state Senate and by Dr. Sabi Kumar (R-Springfield) in the General Assembly, the bill was championed by the grass-roots advocacy organization Tennessee Fertility Advocates.

Infertility Insurance Good for Families

This measure, part of a growing trend requiring insurers to cover infertility as they do other types of medical conditions, will be enormously impactful on would-be parents. Because each step—and each new attempt—incurs additional cost, the lack of insurance coverage can distort the fertility treatment process itself.

For example, if a heterosexual couple is going through an in vitro fertilization (IVF) cycle, they currently have every incentive to have as many embryos formed as possible, because each new round of IVF comes at a significant cost. This creates an incentive to transfer more than one embryo at a time to avoid the cost of another embryo transfer, resulting in higher-risk pregnancies with multiples. This concern about uninsured costs also results in more unused embryos left in cryopreserved storage (a mounting problem we wrote about earlier) and in the discarding of excess embryos due, in part, to a lack of funds to pay for continued storage after having spent so much on IVF.  Extending insurance coverage to fertility treatment alleviates these cost-related distortions—fewer embryos left over, and less pressure for the intended parents to discard embryos for financial reasons.

The issue of unused and abandoned embryos is at the heart of much of the controversy surrounding infertility insurance legislation: Are such laws anti-abortion, pro-choice or do they open up a can of worms regarding whether embryos are entitled to “personhood” status? Believe me, proponents of all those positions get involved whenever these bills are presented. Often anti-abortion factions will ask the question: Why isn’t there anything in this bill to prevent unused embryos. There is some concern that Tennessee Governor Bill Lee, a conservative Republican who in July 2020 signed a bill criminalizing abortion from the time a fetal heartbeat can be detected, will veto this bill if it passes.

Definition of Infertility 

It’s unclear what the new law will mean for LGBTQ couples and single people who want to become parents using assisted reproductive technologies such as egg or sperm donation, in vitro fertilization (IVF) or surrogacy. While the language of the bill does not specifically address coverage treatment for LGBTQ and single intended parents, it defines “infertility” in gender-neutral terms, as a “disease or condition characterized by (A) the failure to conceive a pregnancy or to carry a pregnancy to live birth; (B) a person’s inability to cause pregnancy and live birth either as an individual or with the person’s partner; or (C) a licensed physicians findings and statement based on a patient’s medical history, sexual and reproductive history, age, physical findings, or diagnostic testing…”

As we wrote recently, even though many of the new state fertility insurance mandates require insurers to treat same-sex couples equally, the laws’ and insurance companies’ reliance on traditional definitions of infertility, most of which stipulate an inability to conceive after a year of sexual intercourse, have served to discriminate against gay men. “And the insurance industry, which has always opposed laws that mandate specific types of coverage, appears to use legalistic definitions to deny coverage, even as it promises not to discriminate based on sexual orientation.”

Failure to include gay men in fertility insurance mandates is not uncommon. New York’s fertility insurance law, effective in January 2020, creates the same dilemma for gay men by relying on a heterosexually focused definition. As we wrote earlier:

While the New York legislature’s expansion of access to IVF for millions of women, it falls short of providing equal reproductive rights for same-sex couples and members of the LGBT community. As RESOLVE reports, under the new law, straight couples, lesbian couples and single women who need IVF and are in large-group insurance plans, will be covered. The new law also “prohibits delivery of insurance coverage from discriminating based on age, sex, sexual orientation, marital status, or gender identity, as RESOLVE reports. However, as I told The New York Post, the law also relies upon a standard and limiting definition of infertility to determine who is and is not eligible for IVF treatment:

The state of New York defines infertility as a disease or condition characterized by the incapacity to impregnate another person or to conceive, as diagnosed or determined by a physician or by the failure to establish a clinical pregnancy after 12 months of regular, unprotected sexual intercourse, or after six months of regular, unprotected sexual intercourse for women 35 or older.

Because of this definition, additional fine-tuning will be needed—either via legislation or court cases—to ensure that gay men or single men are not unfairly discriminated against. 

In 2013 California updated its fertility insurance law to clarify that insurers cannot deny coverage to LGBTQ intended parents due to any limiting definitions of infertility. But California’s law, which requires plans covering more than 20 employees to offer fertility insurance and does not cover Medi-Cal patients, does not require coverage for in vitro fertilization (IVF)—a procedure necessary in order for a gay man to become a father.

We at IFLG applaud the increasing availability of fertility insurance, which will help thousands of families manage the steep costs of high-technology infertility treatments. For many intended parents, the availability of insurance coverage will be the deciding factor in whether they can afford to pursue their dreams of parenthood. Expanded insurance coverage will expand access to assisted reproduction. But unless and until the law and the insurance industry stop relying on outdated concepts of what families look like and how they are formed, gay and single men will continue to be denied full equality.

Even with its limitations and potential inequities, the Tennessee bill to provide infertility treatment coverage is an important step in the right direction. Universal insurance coverage will allow more people who want to become parents avail themselves of modern medical technologies, strengthen families and help reduce the number of excess embryos created and possibly discarded—all positive outcomes regardless of where one falls on the political spectrum.