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Rights recognized the obligation not to obstruct the fundamental right to reproduction in its decision to overturn Costa Rica’s ban on in vitro fertilization (IVF) (12). In overturning the 12-year ban, which had been premised on the ‘‘personhood’’ rights of embryos, the Court found that citizens’ rights to enjoy reproductive autonomy and privacy, access reproductive health services, and create a family outweighed the interests of nonimplanted embryos. UNMET NEED IN TREATING INFERTILITY Many individuals in the United States with impaired fertility remain untreated or undertreated. In 2009, an international panel of experts estimated that only 24% of the needs for assisted reproductive technology (ART) in the US population were being met (13, 14). ART accounts for approximately 1.5% of births in the United States, compared with an average of 3% of births in Europe, and higher percentages in many countries that publicly fund IVF, such as Denmark (5.9%), Belgium (4.0%), and Sweden (3.5%) (15–17). Although detailed statistics are not available on the number of infertile men and women in the United States treated by means other than ART (e.g., surgery, medication, ovulation induction with or without intrauterine insemination), the National Survey of Family Growth reports that during the period of 2006–2010, just 38% percent of nulliparous American women with current fertility problems had ever used infertility services and most commonly those were medical advice and testing (18). Surveying 4,712 women by telephone, one investigator estimated that of those who met the criteria for infertility, 2.5 million women with infertility in the United States had not received medical treatment (19). In some instances, infertility care may be less available to men compared with women (20). Fertility preservation before gonadotoxic therapy is a further category of general ART access where only a subset of male and female patients (1 or 2 embryos in anyone (42–46). Indeed, studies suggest that patients choose elective single-embryo transfer more frequently when cost pressure is reduced through insurance coverage or other reduced-price financing (47, 48). With a lower rate of multiple births comes improved maternal and newborn health, both desirable public health goals (49). These data have led some observers to describe the paucity of insurance coverage as creating a situation of moral hazard: ‘‘patients’ immediate financial interests are best met by maximizing their pregnancy chances on each treatment cycle, despite the health risks and long-term costs’’ (50). For patients, the benefits of insurance coverage for infertility are clear: they are able to obtain appropriate, needed medical treatment without incurring sometimes significant financial hardship. For physicians, the benefits include being able to provide care on the basis of the patient’s medical needs rather than on what the patient can afford; facilitating elective single-embryo transfer and similar limits; and sparing physicians from having to turn away patients because of inability to pay, thus serving a social justice goal. As important as they are, insurance mandates are imperfect in achieving equal access to and use of infertility treatments. Most critically, they are able to reach only a portion of the population in the mandated state. As noted above, most mandates apply only to persons who have private insurance, and only to those policies that must comply with the state insurance law. This means that infertility coverage may not be available to people who are uninsured, who obtain health coverage through Medicaid or other government programs, or who obtain health insurance from employers that are either self-insured, too small to be subject to the mandate (e.g., mandates in Illinois, Maryland, and New Jersey apply only to employers over a certain size), or based outside of the mandated state. Studies have shown that even in states with comprehensive infertility mandates, infertility care still is used disproportionately by non-Hispanic white women of high socioeconomic and educational status (51–54). These limitations will be overcome only when fertility treatment is included in all health insurance coverage, whether private or public (e.g., federal employee benefits, retired and active duty military benefits, veterans benefits, Medicaid), just like diseases affecting other major bodily systems. The American Society for Reproductive Medicine (ASRM) strongly supports the inclusion of fertility care in all programs of coverage. The Affordable Care Act of 2010 presented an opportunity to expand coverage for infertility to a much broader swath of the population; unfortunately, there is little indication it will achieve that result. The Affordable Care Act may improve disparities in infertility prevention, as men and women who previously were uninsured have access to sexually transmitted disease screening, treatment, and counseling. In addition, it should prevent infertility from being treated as a pre-existing condition that disqualifies individuals from obtaining future insurance coverage. Alternatively, the Affordable Care Act did not expand access to infertility treatment except in the states that had infertility mandates before December 2011. In fact, infertility care was not explicitly included in the list of ‘‘Essential Health Benefits’’ that all
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