It Costs What!? To Start a Family? Infertility and the Constitutional Right to Procreate

Authors

Shillings-Barrera, Jessica

Abstract

Access to infertility treatment, particularly Assistive Reproductive Technology (“ART”), such as In Vitro-Fertilization (“IVF”), continues to be prohibitively expensive and is not typically covered by employer- based insurance plans. Only a handful of states require employer-based insurance plans to cover any kind of infertility treatment. However, even those states that do, are inconsistent about which types of treatment must be included in the qualifying plans and differ in their definitions of infertility. These inconsistencies, in both coverage and definition, operate as discriminatory gatekeeping devices, privileging certain would-be parents while discriminating against others by barring access to screening and treatment. Without independent wealth or insurance coverage, most would-be-parents must rely only on their personal savings and an IRS rule)Internal Revenue Code section 213(a) that allows taxpayers to deduct the cost of medical expenses above 7.5% of their adjusted gross income. However, the IRS rule does not allow for the deduction of third-party medical expenses unrelated to the taxpayer. This discriminates against would-be-parents who utilize the assistance of (and bear the cost of) an egg donor or gestational carrier.

Access to infertility treatment should be formally recognized as a fundamental liberty interest under the Fourteenth Amendment. To guarantee consistent nationwide coverage from employer-based insurance plans, the infertility community also needs its own accompanying Infertility Discrimination Act (“IDA”), styled like the Pregnancy Discrimination Act. An effective IDA should explicitly state that an otherwise inclusive plan that singles out infertility-related benefits for exclusion is discriminatory. Additionally, the tax code should be modified to allow prospective parents to deduct medical costs incurred on behalf of third parties for the purpose of overcoming medical and/or circumstantial infertility.

Recommended Citation

Shillings-Barrera, Jessica, Case Note, It Costs What!? To Start a Family? Infertility and the Constitutional Right to Procreate, 62 Santa Clara L. Rev. 683 (2022).
Available at: https://digitalcommons.law.scu.edu/lawreview/vol62/iss3/5