Hostname: page-component-848d4c4894-ttngx Total loading time: 0 Render date: 2024-06-04T08:58:36.658Z Has data issue: false hasContentIssue false

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

Published online by Cambridge University Press:  01 January 2021

Extract

Melanie was 29-years-old, married, and hoping to start a family when she discovered a lump in her pelvis. She was diagnosed with non-Hodgkin lymphoma. But one of her biggest fears upon learning of her diagnosis was the possibility of loosing her ability to have children. When Melanie asked her oncologist and radiation oncologist about the risk cancer treatment posed to her fertility, they told her it was small, as only one ovary would be destroyed during the radiation. Deciding to ask for another opinion, she sought out a reproductive endocrinologist, who told her, contrary to what her oncologists had said, that women like her typically did have problems conceiving after radiation treatment on their pelvis. One of the hardest parts of dealing with her dual diagnosis, Melanie later recalled, was the unknown: “I didn't know if my treatment would definitely render me infertile.”

Type
Independent
Copyright
Copyright © American Society of Law, Medicine and Ethics 2010

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

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).+(last+visited+October+6,+2010).>Google Scholar
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.Google Scholar
Raymond, J. G., “Reproductive Gifts and Gift giving: The Altruistic Woman,” Hastings Center Report 20, no. 6 (1990): 711.CrossRefGoogle Scholar
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): 12841286.CrossRefGoogle Scholar
Lee, S. J. et al., “American Society of Clinical Oncology Recommendations on Fertility Preservation in Cancer Patients,” Journal of Clinical Oncology 24, no. 18 (2006): at 2917–2931.Google Scholar
Cullen, K., “Law Orders Coverage for Infertility,” Boston Globe, October 9, 1987Google Scholar
Although most definitions do not explicitly specify heterosexual sex, it is implied that they are referred to heterosexual sex rather than homosexual sex.Google Scholar
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).Google Scholar
Massachusetts, T.C.o., Legislative Packet SC1/Series 229, Passed Acts, Chapter 394 of the Acts of 1987, Archives, M., ed. (Boston, 1987).Google Scholar
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).Google Scholar
Id. (Harris).Google Scholar
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., and Ronner, W., The Empty Cradle: Infertility in America from Colonial Times to the Present (Baltimore: Johns Hopkins University Press, 1996).Google Scholar
See Cullen, , supra note 6.Google Scholar
Id.; see Harris, , supra note 10; Britt, , supra note 10.Google Scholar
See Cullen, , supra note 6; Britt, , supra note 10.Google Scholar
See Harris, , supra note 10; Britt, , supra note 10.Google Scholar
See Cullen, , supra note 6.Google Scholar
Griffin, M. and 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): 2229.CrossRefGoogle Scholar
See Legislative Packet SC1/Series 229, supra note 9.Google Scholar
211 CMR 3700 (1995).Google Scholar
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.Google Scholar
See 211 CMR 3700, supra note 20.Google Scholar
See Harris, , supra note 10; Britt, , supra note 10.Google Scholar
Horner, M.J. et al., SEER Cancer Statistics Review, 1975–2006. 2009, National Cancer Institute, Bethesda, MD.Google Scholar
American Cancer Society, Cancer Facts and Figures 2006, American Cancer Society, Atlanta, 2006.Google Scholar
Jeruss, J. S. and Woodruff, T. K., “Preservation of Fertility in Patients with Cancer,” New England Journal of Medicine 360, no. 9 (2009): 902911.CrossRefGoogle Scholar
Woodruff, T. K. and 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. et al., “Medical Hope, Legal Pitfalls: Potential Legal Issues in the Emerging Field of Oncofertility,” Santa Clara Law Review 49 (2009): 673–716; Quinn, G. P. et al., “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.Google Scholar
Schover, L. R., “Motivation for Parenthood After Cancer: A Review,” Journal of the National Cancer Institute of Monographs 34, (2005): 25.CrossRefGoogle Scholar
Carter, J. et al., “Gynecologic Cancer Treatment and the Impact of Cancer-Related Infertility,” Gynecological Oncology 97, no. 1 (2005): 9095, at 93.CrossRefGoogle Scholar
See Schover, , supra note 29.Google Scholar
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.Google Scholar
See Lee, et al., supra note 5.Google Scholar
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).Google Scholar
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): 3946.CrossRefGoogle Scholar
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. and Clark, K. L., “The Psychosocial Context of Cancer-Related Infertility,” Cancer Treatment and Resolution 138 (2007): 180–90.CrossRefGoogle Scholar
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.Google Scholar
Bunce, V. C., and Wieske, J., Health Insurance Mandates in the States 2009, Council for Affordable Health Insurance, 2009.Google Scholar
Laugesen, M. J. et al., “A Comparative Analysis of Mandated Benefit Laws, 1949–2002,” HSR: Health Services Research 41, no. 3 (2006): 10811103 at Part II.Google Scholar
See Bunce, and Wieske, , supra note 38.Google Scholar