Insuring against Infertility: Expanding State Infertility Mandates to Include Fertility Preservation Technology for Cancer Patients

Melanie , “Survivor Stories,” Fertile Hope website, cited March 26, 2010, available at <http://www.fertilehope.org/find-support/cancer-survivor-stories-details.cfm?SID=680> (last visited October 6, 2010).

American Society for Reproductive Medicine, “Infertility,” available at <http://asrm.org/topics/detail.aspx?id=36> (last visited October 13, 2010). Implicit in most definitions of infertility is that the individual is engaging in heterosexual sex, thereby precluding homosexual individuals from being diagnosed as infertile. Mamo L. , Queering Reproduction: Achieving Pregnancy in the Age of Technoscience (Durham, NC: Duke University Press, 2007): At xi, 304. It is also worth noting that many definitions target women's bodies, not men's. While it is true that women are the ones who experience pregnancy, focusing only on women's bodies implies that women alone are responsible for infertility.

Raymond J. G. , “Reproductive Gifts and Gift giving: The Altruistic Woman,” Hastings Center Report 20, no. 6 (1990): 7–11.

Campo-Engelstein L. , “Consistency in Insurance Coverage for Iatrogenic Conditions Resulting from Cancer Treatment Including Fertility Preservation,” Journal of Clinical Oncology 28, no. 8 (2010): 1284–1286.

Lee S. J. , “American Society of Clinical Oncology Recommendations on Fertility Preservation in Cancer Patients,” Journal of Clinical Oncology 24, no. 18 (2006): at 2917–2931.

Cullen K. , “Law Orders Coverage for Infertility,” Boston Globe, October 9, 1987

Although most definitions do not explicitly specify heterosexual sex, it is implied that they are referred to heterosexual sex rather than homosexual sex.

A person is sterile if it is impossible for her to conceive (e.g., both of her ovaries have been removed), whereas a person is infertile if she has trouble conceiving though it is possible for her to do so (e.g., having one blocked fallopian tube).

Massachusetts, T.C.o., Legislative Packet SC1/Series 229, Passed Acts, Chapter 394 of the Acts of 1987, Archives M. , ed. (Boston, 1987).

Harris L. H. , Challenging Conception: A Clinical and Cultural History of In Vitro Fertilization in the United States (University of Michigan: Ann Arbor, 2006); Britt E. C. , Conceiving Normalcy: Rhetoric, Law, and the Double Binds of Infertility (Tuscaloosa: University of Alabama Press, 2001).

Id. (Harris).

It is worth noting that the cultural narrative that there is an infertility epidemic because white, middle-class women are delaying childbearing still exists today. Id. (Harris); id. (Britt); Marsh M. Ronner W. , The Empty Cradle: Infertility in America from Colonial Times to the Present (Baltimore: Johns Hopkins University Press, 1996).

See Cullen , supra note 6.

Id.; see Harris , supra note 10; Britt , supra note 10.

See Cullen , supra note 6; Britt , supra note 10.

See Harris , supra note 10; Britt , supra note 10.

See Cullen , supra note 6.

Griffin M. Panak W. F. , “The Economic Cost of Infertility-Related Services: An Examination of the Massachusetts Infertility Insurance Mandate,” Fertility and Sterility 70, no. 1 (1998): 22–29.

See Legislative Packet SC1/Series 229, supra note 9.

211 CMR 3700 (1995).

Saltus R. , “In Vitro Method Gives Birth to New Hopes-Sidebar Good News for Patient Touches Doctor's Private Grief,” Boston Globe, November 15, 1987.

See 211 CMR 3700, supra note 20.

See Harris , supra note 10; Britt , supra note 10.

Horner M.J. , SEER Cancer Statistics Review, 1975–2006. 2009, National Cancer Institute, Bethesda, MD.

American Cancer Society, Cancer Facts and Figures 2006, American Cancer Society, Atlanta, 2006.

Jeruss J. S. Woodruff T. K. , “Preservation of Fertility in Patients with Cancer,” New England Journal of Medicine 360, no. 9 (2009): 902–911.

Woodruff T. K. Snyder K. A. , eds., “Oncofertility: Fertility Preservation for Cancer Survivors,” in Rosen S. T. , ed., Cancer Treatment and Research (New York: Springer, 2007); Dolin G. , “Medical Hope, Legal Pitfalls: Potential Legal Issues in the Emerging Field of Oncofertility,” Santa Clara Law Review 49 (2009): 673–716; Quinn G. P. , “Frozen Hope: Fertility Preservation for Women with Cancer,” Journal of Midwifery & Women's Health 55, no. 2 (2010): 175–180; Woodruff T. K. , “The Oncofertility Consortium - Addressing Fertility in Young People with Cancer,” Nature Reviews Clinical Oncology, 7, no. 8 (2010): 466–475.

Schover L. R. , “Motivation for Parenthood After Cancer: A Review,” Journal of the National Cancer Institute of Monographs 34, (2005): 2–5.

Carter J. , “Gynecologic Cancer Treatment and the Impact of Cancer-Related Infertility,” Gynecological Oncology 97, no. 1 (2005): 90–95, at 93.

See Schover , supra note 29.

This definition of infertility is also problematic for a number of other reasons, though we do not have the space to cover them here. However, it is worth pointing out that this definition not only excludes cancer patients but also many other groups of people, such as single women, lesbians, and straight and gay men.

See Lee , supra note 5.

In her book, The Infertility Treadmill, Karey Harwood analyzes why couples continue to use infertility treatments for years despite the fact that they have not been successful (Chapel Hill: The University of North Carolina Press, 2007).

While we agree that cancer patients are not causally responsible for their infertility, the argument that women who delay childbearing should be held causally responsible for their infertility is problematic because it fails to acknowledge the patriarchal structures (e.g., inflexible workplace environment, women's role as primary cake takers of children, etc.) that lead women to have to delay childbearing if they want to pursue higher education and/or have a successful career. Accordingly, one could argue that women who delay childbearing may also not be causally responsible (or at least not fully causally responsible) for their infertility. Harwood K. , “Egg Freezing: A Breakthrough for Reproductive Autonomy?” Bioethics 23, no. 1 (2009): 39–46.

Studies have shown that the possibility of infertility is the second greatest concern for both female and male cancer patients, second only to mortality. Loscalzo M. J. Clark K. L. , “The Psychosocial Context of Cancer-Related Infertility,” Cancer Treatment and Resolution 138 (2007): 180–90.

There are also non-legislative routes that could be taken (e.g. executive order, court ruling). However, because we have focused on the legislative realm throughout this paper, we restrict ourselves to that realm in this section as well.

Bunce V. C. Wieske J. , Health Insurance Mandates in the States 2009, Council for Affordable Health Insurance, 2009.

Laugesen M. J. , “A Comparative Analysis of Mandated Benefit Laws, 1949–2002,” HSR: Health Services Research 41, no. 3 (2006): 1081–1103 at Part II.

See Bunce Wieske , supra note 38.