AMA Blindsides Infertility Community: FWR Response 2 of 5

by Davina Fankhauser
President - Fertility Within Reach

“Who Pays? Mandated Insurance Coverage for Assisted Reproductive Technology,1” published by the American Medical Association Journal of Ethics, examines the arguments for mandating insurance coverage for assisted reproductive technology (ART) which includes in vitro fertilization (IVF).  Overall, the researchers concluded, with almost palpable condescension, that while infertility is a hardship, it should not be mandated because the option of adoption is a good alternative.

Fertility Within Reach has written a five page response to this article.  We are going to share our reaction multiple blog posts.

Retort #1: Infertility and Adoption was posted Monday, January 13, 2014.  Here we utilize research to point out how Dr. Rosoff and Katie Falloon grossly minimize the adoption process, in terms of cost, time, and legal issues.

Retort #2: Equal Access

Dr. Rosoff and Katie Falloon acknowledge that the US Supreme Court ruled that the inability to reproduce was a disability and thus afforded the protections of the American Disabilities Act [11, 26}.  What they neglected to mention, was additionally, “In three ADA cases following Bragdon, the Court held that an individual is not considered substantially limited in performing a major life activity that is disabled, if the impairment can be overcome by mitigating or corrective measures. These measures included corrective lenses, prescription medication for hypertension, and self-corrective measures to compensate for an eye condition.”4 I would suggest to the authors of this article, that a patient can only overcome their disability if they can utilize corrective measures.  By not providing affordable health care options to treat their disease, individuals are not provided equal opportunity to overcome their disability.

Access to timely and appropriate health care is key.  Within the AMA article, Dr. Rosoff and Katie Falloon point out that although Massachusetts has an exceptional mandate, “ART services remain effectively unavailable to the poor and uninsured, a population that has the same or greater incidence and prevalence of infertility than their more financially advantaged peers.”  What the authors don’t report is the fact that most of the population considered poor in Massachusetts, are able to access health care through a Mass Health Medicaid program.5 While these researchers shared that ART is not provided within Medicaid,they did not make the obvious conclusion that this factor alone may explain the low usage of ART by lower income individuals in mandated states.  In fact, even though Massachusetts has a mandate in which infertility treatment must be covered by insurance if OBGYN care is, the Massachusetts Division of Insurance reports there are more than one million individuals without mandated health benefits.  The federal law, Employee Retirement Income Security Act — ERISA, identifies groups of employers who are exempt from providing mandated insurance benefits, including companies that are self-insured.  In addition, many states write into their laws that small businesses (under 25 or 50 employees) are also exempt from “mandate” laws.   Therefore, I object to the authors finding that “ART mandating coverage did not make the distribution of ART more equitable.”  Rather, the lack of benefits offered due to ERISA renders a relatively large percentage of the population without ART benefits, even within a mandated state.

Retort #3:  Medical Care vs. Alternative Treatments
Retort #4:  The Impact of Infertility
Retort #5:  The Cost of Infertility Health Benefits

About the authors:

Davina Fankhauser, MA is the co-founder and President of Fertility Within Reach, a national non-profit organization which helps patients gain access to infertility health benefits to treat their medical condition in a timely and appropriate manner.  She works collaboratively with medical professionals and organizations to bring accurate information to patients, employers, insurers and legislators.  Davina lobbied at the Massachusetts State House and saw the successful passage of an update to the medical definition of infertility within the state.  She also testified before the Massachusetts Division of Insurance to request Oocyte Cryopreservation be a required benefit of infertility.  Working with medical directors, she presented recommended Oocyte Cryopreservation guidelines to insurers.  These companies are now offering Oocyte Cryopreservation to infertility patients as well as patients facing medical treatments which will render them infertile.

Katie Falloon is a second-year medical student at Duke University School of Medicine in Durham, North Carolina. She graduated magna cum laude from Yale University with a degree in English.

Philip M. Rosoff, MD, MA, is a professor of pediatrics (oncology) and medicine at the Duke University School of Medicine and Duke University Medical Center in Durham, North Carolina. He is also chair of the center’s ethics committee and a member of the Trent Center for Bioethics, Humanities and History of Medicine. His research interests and scholarly work are in the area of medical resource allocation, especially rationing. His book Rationing Is Not a Four-Letter Word: Setting Limits on Healthcare will be published in spring 2014 by MIT Press.


1. Virtual Mentor. January 2014, Volume 16, Number 1: 63-69.


5. Centers for Medicare & Medicaid Services.  (2014).   State Medicaid and CHIP Income Eligibility Standards Effective January 1, 2014.  Retrieved from



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Davina Fankhauser

President - Fertility Within Reach

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