The U.S. Should Cover the Cost of IVF (for Gays and Lesbians Too)

By Dov Fox

Glenn Cohen and I make the case in this morning’s Huffington Post:

This week the United Kingdom joined the ranks of countries like Canada, Israel, and Sweden that provide in vitro fertilization (IVF) treatment to citizens under a certain age (42 in the U.K.) who can’t have children without it. That includes gays and lesbians. When it comes to helping people form the families they long for, the United States is woefully behind. The U.S. has among the lowest rates of IVF usage of any developed country in the world, owing in part to boasting the highest cost for the procedure, on average $100,000 for each successful pregnancy.

Among the handful of states that require insurers to cover IVF, many carve out exclusions for same-sex couples and people who aren’t married. These singles, gays, and lesbians are sometimes called “dysfertile” as opposed to “infertile” to emphasize their social (rather than just biological) obstacles to reproduction. The U.S. should expand IVF coverage for the infertile, and include the dysfertile too.

The U.S. Supreme Court has held that the inability to reproduce qualifies as a health-impairing disability under the Americans with Disabilities Act. The commitment to universal health care that we renewed in President Obama’s health reform act invites us to understand the infertile and dysfertile alike as needing medicine to restore a capacity—for “[r]eproduction and the sexual dynamics surrounding it”—that is, in the words of the Supreme Court, “central to the life process itself.”

It is true that dysfertility fits less comfortably within the medical model. But why should that alone make less worthy the desires of gays and lesbians to have a genetic child? Joe Saul, the protagonist in John Steinbeck’s 1950 play Burning Bright, put it best:

A man can’t scrap his bloodline, can’t snip the thread of his immortality. There’s more than . . . the remembered stories of glory and the forgotten shame of failure. There is a trust imposed to hand my line over to another.

My impulse to create a biological family, to raise “my own” children, to “hand my line over to another” is shared by people single or married, black or white, gay or straight. And the arguments against IVF subsidies fall short. 

Among the reasons to oppose broader access—that IVF destroys embryos, for example, or that funding assisted reproduction devalues nongenetic parenthood—three stand out. The first is that IVF causes health problems. Recent studies have found, however, that fertility treatment doesn’t increase the risk of cancer in women. And subsidizing the procedure, by reducing the need to implant multiple embryos in a single attempt at IVF pregnancy, will in fact help to prevent those ailments to offspring associated with twins and higher-order births.

A second objection is that IVF coverage costs too much. A 2007 estimate suggested that including IVF would increase insurance premiums by $10 to $120 per year. But that’s no more than for routine blood and lab tests, as Time reported last week, and it even exaggerates overall costs by failing to account for the medical expenses that IVF coverage would save by reducing high-cost multiple births.

Finally, some worry that greater access to IVF would diminish the availability of homes for unadopted children. The number of children in need of homes is a national tragedy that government should remedy with generous tax credits and other supports. But empirical research finds no strong evidence that states that require health insurers to cover IVF see any reduction in their rates of adoption.

In Skinner v. Oklahoma, a 1942 Supreme Court case, Justice Douglas proclaimed marriage and procreation “the basic civil rights of man,” calling them together “fundamental to the very existence and survival of the race.” As the Court considers whether gays and lesbians should be permitted to marry who they love, this is the moment to consider reasonable measures to combat reproductive inequalities too.

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About Dov Fox

Dov Fox is Professor of Law and founding Faculty Director of the Center for Health Law Policy and Bioethics at the University of San Diego School of Law. He has published dozens of articles in leading journals of law and medical ethics, most recently “Reproductive Negligence” in 117 Columbia Law Review 149 (2017). His current book project, Birth Rights and Wrongs, is under contract with Oxford University Press. His work has been featured in CNN, ABC, NPR, BBC, Reuter’s, Bloomberg, the Boston Globe, and the Washington Post. Fox is a regular columnist for The Huffington Post and contributor to the Bill of Health blog. He also serves on the advisory boards of the American Constitution Society and Appellate Defenders, the non-profit law firm that administers all appointed counsel for indigent defendants in California's Fourth Appellate District. Prior to teaching, Fox served as a law clerk to the Honorable Stephen Reinhardt of the U.S. Court of Appeals for the Ninth Circuit. He has also worked at the law firm of Wachtell, Lipton, Rosen & Katz; the consulting firm of McKinsey & Company; and the Civil Appellate Staff at the U.S. Department of Justice. Fox was awarded a Rhodes Scholarship to attend Oxford University, where he earned his DPhil and then received a Soros Fellowship for New Americans to attend Yale Law School, where he served as projects editor for the Yale Law Journal and all three years was awarded the prize for best student paper in law and the sciences.