Fertility Preservation for Medical Reasons and Reproductive Justice

This Article addresses the issues related to fertility preservation in the emerging area of oncofertility using a reproductive justice framework. Oncofertility refers to the process of preserving the fertility of women (and men) who need to undergo cancer treatments that may cause reduced fertility or sterility. This process typically involves counseling a patient about the potential fertility consequences of their cancer treatment, and then if a patient so chooses (and can afford it) freezing the eggs or sperm to potentially use later via in vitro fertilization or using a gestational surrogate. As cancer survival rates improve, the ability to bear children after therapy is increasingly a concern for many patients. Some patients may choose their cancer therapy based on the risk of fertility loss rather than on its effectiveness to cure the cancer. Unfortunately, a patient’s race and insurance status often determines if and when they are told about the fertility consequences of their treatment. Those without insurance are often already financially challenged after a cancer diagnosis, so physicians may not inform them about fertility preservation due to the high costs. No states currently have laws requiring insurance coverage for oncofertility. Therefore, even if a patient has insurance, fertility preservation may not be covered. As a practical matter, when insurance companies deny fertility preservation coverage, there is often a short time frame between diagnosis and treatment that does not allow time to seek appeal. Those able to pay for oncofertility are likely white, educated, middle- and upper-class women, similar to the general assisted reproductive technology (ART) population. Oncofertility coverage has been getting more support in recent months. In June 2013, the American Medical Association adopted a policy that supports payment for fertility preservation and lobbies for appropriate federal legislation requiring payment for oncofertility. This new policy treats infertility as a medical condition, not a choice, when the disease or treatment affects biological motherhood. Additionally, California is currently considering CA bill AB 912, which would require insurance companies to provide coverage for medically necessary expenses for standard fertility preservation services when a medical treatment may cause infertility. If this bill is approved, it may improve the quality of life for cancer survivors who have health insurance. Although this is encouraging, this also has the real potential to exacerbate the divide between the patient “haves” and “have-nots.” Cancer has a disproportionately severe impact on minorities. The Centers for Disease Control and Prevention report that cancer death rates for women are highest among African Americans, followed by Caucasians, Hispanics, and Asian/Pacific Islanders. Cancer has been the leading cause of death for female Asian Americans since 1980. Some of the disproportionate impact has been attributed to delayed diagnosis as well as poor patient care. Poor people who lack health insurance or have inadequate access to quality cancer treatment also experience higher cancer incidence, higher mortality rates, and lower survival rates than their more well off counterparts. Because oncofertility is not currently covered by either private or public insurance, only those who can pay for it on their own can use it. Some scholars have argued that it should be covered by insurance. Others contend that adding oncofertility to insurance coverage, without expanding health care coverage to those without insurance, may reinforce socioeconomic inequality. Additionally, a recent study suggests that oncologists are less likely to discuss oncofertility with African American women, regardless of income, than white women. This Article discusses this evidence and whether oncofertility can be structured in a manner to promote reproductive justice. This Article reviews oncofertility with a reproductive health, reproductive rights, and reproductive justice framework to identify normative standards for use and informed consent in fertility preservation. This Article concludes that care needs to be taken to fully and properly inform vulnerable populations of their fertility preservation options. Detailed information provided to each and every patient will help build trust in the medical system that is needed to address medical and cancer disparities that exist in minority populations. Additionally, this Article identifies other related legal issues that should be rolled into the informed consent procedure to avoid dispositional dilemmas.