2022 State Legislative Efforts Bring New Hope For Those Struggling With Infertility

One in eight Americans struggle with infertility. So the chance that you know someone (or are that person) in this situation is approximately 100%. But the price tag for fertility treatment — often $10,000 to $20,000 per attempt at conception through in vitro fertilization (IVF) — keeps the possibility of a child just out of reach for many.

Historically, insurance plans have excluded coverage for infertility, treating it differently than other medical conditions. However, that is slowly changing. Nineteen states (so far) have addressed the issue, and passed an infertility insurance law. This upcoming legislative session, a number of states are looking to continue the trend and increase access to fertility care.

I spoke with Betsy Campbell, chief engagement officer for RESOLVE: The National Infertility Association, about some of the state legislation that they were focused on this year. RESOLVE has worked tirelessly to advocate for better access to fertility care across the country and were instrumental in passing the Colorado Building Families Act in my home state of Colorado in 2020. That particular piece of legislation took a rough turn recently, being blocked from the planned January 1, 2022, implementation.

Colorado — Mending A Broken Heart. Just before the Colorado state legislature shut down due to COVID-19 in March 2020, it passed a bill requiring insurance plans under Colorado state law to treat fertility diagnosis, preservation, and treatment as it would any other medical condition. At the last minute, language was added to the bill to protect the state from “defrayal” under the Affordable Care Act (ACA) — the state having to financially offset any increase in premiums caused by the insurance mandate. That language, hastily drafted, ultimately stopped the whole act from going into effect as planned on January 1, 2022. For the complicated but enlightening details about insurance issues, you can read more here. Sponsors from both sides of the aisle have now introduced a “fix-it” bill to permit the act to go into effect for at least that segment of the insurance market that has no potential for defrayal. Fingers crossed there.

In addition to hope in Colorado, Campbell explained that RESOLVE was excited about bills up for consideration this session in California, Oregon, and Washington State.

California. Like a bill proposed in California in 2021, Campbell is expecting a push for the Golden State to include IVF as part of its required fertility coverage. Right now, the Golden State requires insurance plans to provide coverage for fertility preservation for iatrogenic or medically induced infertility (which RESOLVE helped pass in 2019), but for infertility, the state has had a “mandate to offer” since 1989. That mandate means insurers must offer employers the option of a fertility rider (and can charge whatever they want); however, employers still choose whether to offer it to their employees, and the “mandate to offer” excludes coverage for IVF! So RESOLVE and its advocacy allies are working to change the “mandate to offer” to a “mandate to cover” that would also cover IVF and the LGBTQ community and unpartnered individuals.

Oregon. Building on a 2021 bill that amended the state’s Reproductive Health Equity Act, new legislation is expected this session to require insurance plans under Oregon law to provide fertility diagnosis, preservation (for medically induced infertility), and treatment, including up to three rounds of IVF.

Washington State: More Than Just Starbucks. Washington State is known for companies that generously provide fertility benefits to their employees. Probably most famous of all is Starbucks. Stories of people throughout the country getting a job at Starbucks specifically to be able to access fertility benefits are now commonplace. Washington also has Microsoft and Nordstrom, two other companies that are family-building friendly. Campbell explained that both the City of Seattle as well as the Association of Washington Cities each recently moved to include fertility coverage in the benefits offered to their employees (thanks to RESOLVE’s Coverage at Work program). Newly introduced legislation in the state would require all insurance plans under Washington law to provide fertility coverage. It’s not too much of a stretch where so many companies and municipalities in the state are already providing it.

Inclusivity Issues. While some states, such as Massachusetts, successfully passed a fertility mandate years ago, some of the statutory definitions of “infertility” have been found to exclude coverage for some individuals. For example, definitions of infertility that require a patient to try to conceive through sexual intercourse (between a person with eggs and a person with sperm) for a certain time period, doesn’t always fit the situation for a patient who may be single or in the LGBTQ+ community. Such narrow definitions have resulted in coverage being denied for some patients — sometimes with the same medical condition as a person in a heterosexual relationship — purely based on their relationships or absence thereof. Some states are working to revise their fertility mandates to be more inclusive, as did Illinois this past summer.

Of course, there are some less-than-helpful bills up for consideration in a number of states that threaten to decrease access to fertility care.

Personhood Bills. While most proponents of personhood bills are focused on preventing abortions, the language of such bills — which generally define life as beginning at conception — can pose incidental problems for commonplace methods of fertility treatments. For example, the definition of “conception” in this Iowa bill is “the process of combining the male gamete, or sperm, with the female gamete, or ovum, resulting in a fertilized ovum or zygote.” Regardless of your opinion on abortion, this definition could sweep in embryos created through in vitro fertilization (combining eggs and sperm outside of the human body), and could have a chilling effect on the ability of clinics in the state to be able to offer IVF. Indeed, every embryo in every freezer is a potential manslaughter charge, or wrongful death claim waiting to happen.

While anything can happen over the course of the upcoming legislative sessions, for those needing assistance growing their families, there is a lot to be hopeful for.

Ellen TrachmanEllen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.

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