Excerpted From: Julia Cummings, Closing the Reproductive Divide: Expanding Access to Fertility Services Beyond the White Nuclear Family, 41 Minnesota Journal of Law & Inequality 253 (Summer, 2023) (292 Footnotes) (Full Document)


JuliaCummingsAs the World Health Organization has recognized, “infertility is a global health issue.” Millions of Americans are dealing with infertility issues, which can lead to significant secondary impacts including social, mental, and physical harm. Despite the gravity of harms that can result from infertility, and the range of treatment options available, many people forgo treatment. In fact, access to fertility services varies significantly by demographic group. As will be detailed in the following discussion, fertility services are currently dominated by comparatively older white women with higher incomes. Barriers in accessing fertility services are the result of both established laws excluding coverage for particular groups of people and implicitly sanctioned discrimination by the health care system and its stakeholders. This Article explores both forms of discrimination and argues that access should be expanded to reach currently excluded groups. In furtherance of this argument, this Article discusses one potential solution, the proposed Access to Infertility Treatment and Care Act, but critiques the most recent framework of this proposed legislation. While many advocates support the Access to Infertility Treatment and Care Act, there is almost no literature critiquing its shortcomings. This Article seeks to provide these needed critiques so that the law can meaningfully address disparities in fertility services.

Part I provides a background on infertility, fertility treatments, and existing disparities in access to and success of fertility services. Part II argues that access to currently excluded groups should be expanded and justifies this view by borrowing from the existing literature in this area. Part III then explores the ways in which insurance laws can perpetuate existing disparities and reify the notion that fertility services are intended to promote the white, nuclear family. Part IV then examines other, more implicit forms of discrimination caused by socioeconomic and historical forces. Lastly, Part V discusses the potential for the proposed Access to Infertility Treatment and Care Act to address disparities in fertility services, but it also highlights certain flaws and suggests changes that will make the legislation more effective if enacted.

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Clear disparities exist in access to fertility services. These disparities are caused by both explicitly and implicitly permitted forms of discrimination. To remedy these disparities, we must increase access to groups currently excluded from fertility services. Previously introduced federal legislation provides a promising framework to do so, but it is lacking in several respects. In light of the considerations raised in this Article, Congress should reassess its most recent version of the Access to Infertility Treatment and Care Act and reintroduce the Act with the changes described earlier to ensure that the Act's implementation will effect meaningful change. This reassessment should involve not only changes to the financing of fertility services, but also more structural changes aimed at improving access to such services.

J.D., Brooklyn Law School, 2022; B.S., State University of New York College at Geneseo, 2017.