Whether you're egg freezing, donating eggs, considering using donor sperm or donor eggs, considering surrogacy, or you're right at the beginning of your fertility journey and you're not sure where the path could lead you, it is never too early to educate yourself on the legal frameworks that govern your future fertility.
Here to help us better understand what we should know about fertility treatments, insurance and the law is kick-ass fertility lawyer, Kristen B. Montez, who runs her own practice in San Diego, California - The Global Healthcare Law Group.
Kristen's roles in the fertility treatment process include drafting legal agreements between gestational carriers (surrogates) and intended parents, and representing people engaged in egg, sperm and embryo donations.
As well as passionately advocating for her clients worldwide during their assisted reproduction journeys, Kristen also has personal experience of fertility treatment (in fact: she was mid-cycle during our interview).
1. Are you Eligible for Fertility Coverage Through Your Insurance?
According to Kristen, "There is no US federal law that requires insurance coverage for fertility treatment."
However, currently (at the time of writing), 17 states have enacted some type of infertility insurance coverage law and seven states have fertility preservation laws that cover infertility that arises from a medical issue, such as cancer treatment.
Here are the states that currently offer some type of coverage for infertility treatment:
Arkansas; California; Connecticut; Delaware; Hawaii; Illinois; Louisiana; Maryland; Massachusetts; Montana; New Hampshire; New Jersey; New York; Ohio; Rhode Island; Texas; West Virginia.
There are two types of coverage for fertility treatment
The exact laws differ in each of the states that offer some sort of coverage, but most fall into the category of either a "mandate to cover" or a "mandate to offer." Although these sound similar, they're actually different things.
Mandate to cover: Requires that health insurance companies provide coverage of infertility treatment as a benefit included in every policy.
Mandate to offer: Only requires that health insurance companies have a policy that offers coverage of infertility treatment available for an additional fee.
Look at your specific state and whether it has a mandate to cover, a mandate to offer, or neither.
Even if you're in a state that has fertility coverage laws in place, always check your employer's insurance policy
As the fertility advocacy group Resolve.org explains, even if you live or work in a state that has an infertility coverage law in place, you may not always be covered. You can start by learning if your employer plan is:
Fully insured or self insured. Fully insured plans follow state law. Self insured plans follow federal law and are exempt from state law.
Considered a “greater than 25” plan, “greater than 50” plan, etc. In these cases, employers with fewer than a set number of employees do not have to provide the coverage laid out by the government.
Written in the governed state. Generally, the policy must be written and/or reside in the state that has an infertility coverage law. This means that if you work for a company with a policy created outside of the state that mandates coverage, you may not be eligible.
More than one. If so, investigate which are fully insured plans in the state with an infertility coverage law.
You can try to negotiate coverage directly with your employer
All might not be lost if you don't think you have a right to coverage immediately. Kristen says:
"Even if your employer doesn't offer it, go to HR, ask to speak to the benefits team, and tell them your situation and make a case for treatment."
She advises crafting your argument in economic terms - think, "How will the employer be financially incentivized to cover you?" Find facts and figures that show how it might be cheaper in the long run if your initial treatment is covered. For instance, could you make the case that if you freeze your eggs now could you avoid multiple rounds of IVF in the future.
Read more on this here: HR Manager's Guide to Getting Your Company to Pay for Fertility Coverage.
2. Get to know the local laws about freezing and storing eggs/embryos
The laws that govern fertility treatments vary enormously from country to country and even from state to state.
As such, Kristen advises that:
The number one thing to consider as a starting point is: "where do I want to freeze and store my eggs or embryos?" on, in the case of donation and surrogacy, "where is the baby going to be born?"
You can broadly divide US states into "fertility treatment friendly" or not. Friendly states, according to Kristen, include California and Arizona, as they have fewer restrictions, and Louisiana and New York prohibit the exclusion of coverage for a medical condition otherwise covered solely because the condition results in infertility.
However, it's complicated. While most states with laws requiring insurance companies to offer or provide coverage for infertility treatment include coverage for IVF, despite their relatively open policies, California, Louisiana, and New York have laws that specifically exclude coverage for the procedure.
You can check the precise laws in your own state, and see how they might impact you, using this tool from the National Conference of State Legislatures (NCSL).
As well as there being a lack of uniformity in fertility laws, they're also constantly evolving, so it's important to make sure the advice you're getting is the most up-to-date available.
These changes don't always spell good news for fertility treatments, according to Kristen: while some states are moving forward in a positive way, "some are just becoming more restrictive".
Checking out local laws is especially important if you're considering going to a different state, or even overseas, to freeze your eggs or embryos or to have another fertility treatment.
Laws can vary district by district and county by county in some countries, such as in Mexico - so make sure you're reading the rules that directly apply to the locality of the clinic that you're checking out.
In these scenarios, Kristen advises always trying to think a couple of steps ahead of where you are right now: how might you end up using those eggs? Where would you want to end up using them - would you want to go back to that country or state to use frozen eggs or embryos? Remember that travel costs can mount. Another consideration is the geopolitical stability of that region - how comfortable do you feel leaving your eggs or embryos stored there?
Although moving eggs and embryos between states and between countries is legally possible, there will be some costs and paperwork involved. If you think there could potentially be a need to move your eggs or embryos between countries at any stage in your future fertility journey, Kristen stresses that even before you begin the process, check with the relevant embassies and with customs officials in both countries about what exactly you need to do to stay compliant. And it would also be advisable to speak to a specialist lawyer in the other country, as well as one in your home state.
3. Really do your homework when picking the clinic
"I've heard some nightmare stories," says Kristen.
She advises talking to friends and family members to get recommendations as a starting point, and even running legal checks on your potential doctor or clinic if you want to get full-on Nancy Drew about it.
"You can look up the doctor's medical license," Kristen says. "In California, for instance, if a doctor has had a dispute with a patient over $30,000, the doctor needs to disclose it to the medical board. So, you can look that up on the California medical board."
"You can also look up the public records of the courts," she says.
So, let's say a doctor is located in Los Angeles, Kristen recommends doing a search of the doctor's name and clinic name in the civil court to see if they come up as a defendant in a medical malpractice lawsuit or any other kind of lawsuit.
Also don't forget to check out reviews online and social media channels to see what former patients are saying.
(Use the free ELANZA Picking a Clinic: Clinic Comparison Tool when you're ready to start whittling down your short-list of clinics.)
4. Make sure your clinic explains everything clearly
The fertility clinic is a medical environment. As such, Kristen says right from your first visit you should expect to see the same types of explanation and consent in place as you would at your primary care physician.
"And if they're not - that's a red flag."
"You want to make sure your doctor sits with you and discloses all the risks and all the benefits of what you want to do, and explains that there might not be a phenomenal outcome. You want to have realistic expectations."
Counseling you openly and truthfully about risks, success rates and getting your full consent is a legal requirement for your doctor.
"Make sure you're completely informed and you understand everything you're signing."
Kristen also points out that you should read the contract you sign with the clinic in full detail, including all the small-print: "If you're freezing your eggs or embryos and they're going to be stored, what - if any - control does the clinic have over them?"
It's also important to make sure you're clear about what will happen to your eggs if you don't use them or if you stop paying storage fees.
Kristen advises having a lawyer check the paperwork and contracts for you.
5. Consider if you need an extra contract to protect your egg or embryo "assets"
If you're freezing embryos instead of eggs, or part of your fertility treatment process involves donation (you're donating or receiving eggs or sperm), or if a surrogate is involved, then Kristen emphasizes that a watertight contract is essential.
That's on top of the general paperwork your clinic or egg or sperm bank might give to you to sign.
"Not having the right paperwork in place in the beginning can cause heartache."
A contract will contain the exact intentions of who has exactly what rights and responsibilities when it comes to eggs, embryos, sperm and future children, and cover many different eventualities - such as a break up or death.
Kristen cites a case she worked on where a woman and man froze embryos together, but eventually ended up breaking up. The woman, in her late forties, wanted to use the embryos to try to become pregnant, but the man objected.
In this particular case, the couple had actually drawn up a contract, but it had been drafted by non-specialist lawyers. Although they were from a reputable firm, they didn't have specific expertise in fertility treatment law.
The problem was, it turned out the contract did not precisely outline that if the couple broke up that the man would relinquish every right to the embryos. He did not want to give up "parental responsibility", but nor did he wish to become a father using those embryos.
As such, the former couple were stuck in limbo and couldn't move forward with anything - be that using the embryos to try to get pregnant, donating the embryos or even destroying them.
The lesson here is that Kristen recommends always using a lawyer who is a fertility specialist with a focus on the ART laws of your particular jurisdiction, rather than a general family or healthcare lawyer.
In summary, thinking steps ahead and planning for each eventuality will leave you in the strongest position.
Watch the full interview with Kristen B. Montez:
Kristen B. Montez is a fertility lawyer at Global Healthcare Law Group, providing legal and strategic counsel on assisted reproductive treatments.