Access to Fertility Preservation: A Policy Review on State-Level Mandates for Iatrogenic Infertility

Abstract

Background

Fertility preservation (FP) services are a critical piece of family planning for patients with iatrogenic infertility, which is defined as infertility resulting from undergoing a gonadotoxic medical treatment or procedure. There is currently no national mandate for health care plans to cover FP services, and state mandates for coverage are quite heterogenous.

Methods

Between 2016 and 2024, 18 states have passed FP mandates that vary greatly in which diagnoses are covered, for how long the coverage lasts, and if there are additional measures impacting the coverage. Particularly as the legislative landscape around FP rapidly changes, this study aimed to analyze state-level mandates to characterize which patients have reliable access to FP services. This study analyzed state-level mandates on FP services for iatrogenic infertility to build a standardized framework that compares the language in each bill.

Results

Based on close review of each state-level mandate, the following comparison coverage factors were identified for the policy review: clinical diagnoses; type of health plan, including Medicaid; FP services mandated; the time period of coverage; maximum cost; and any religious exemptions.

Conclusion

Key takeaways include: nonspecific legislative language appears to cover a broader set of patients; there remains insufficient detail on storage logistics of cryopreserved tissue, if covered; most states do not cover Medicaid patients; religious exemption conditions can pose barriers for patients seeking gender-affirming care; and experimental treatments are not commonly covered.

Introduction

Fertility preservation (FP), which is distinct from in vitro fertilization services (IVF), is a critical health care service for patients undergoing treatment for medical conditions that may result in iatrogenic infertility. Currently, standard FP services include oocyte cryopreservation, ovarian tissue cryopreservation, sperm cryopreservation, and embryo cryopreservation. Conditions placing patients at risk of iatrogenic infertility are quite broad. Typically, these patients may be facing chemotherapy, radiation, surgery, or other medical treatments that affect their future reproductive capacity. ^1,2

Although there are several conditions requiring treatment that can cause iatrogenic infertility, many of these patients are oncology patients anticipating chemotherapy. ¹ Among patients in their reproductive years, cancer has a high disease incidence of 494.3 males and 420.5 females per 100,000 as of 2019, and between 2010–2019, the incidence of 14 cancers increased among persons younger than 49. ³ Transgender patients seeking gender-affirming hormone therapy also represent a potentially large portion of those facing iatrogenic infertility. Although there is a lack of national FP utilization estimates among the United States transgender population, research in the United Kingdom found that 20.1% reported desiring FP services, despite only 4.4% attempting to access these services due to cost. ^4,5

In 2010, the Affordable Care Act required nongrandfathered health plans in the individual and small group markets to cover a specific set of 10 health services, known as essential health benefits (EHB’s). ⁶ Although oncology, maternity, and newborn care services are included among the EHB’s, FP is not despite the sizable number of individuals who might need coverage for the service.

In response, many states have begun introducing state-level mandates requiring health plans to cover (or to offer supplemental coverage for) standard FP services for iatrogenic infertility. Between 2016 and 2024, 18 states have passed some type of mandate requiring FP coverage, with more in the process of drafting legislation. ⁷ However, the mandates have varying conditions for patients to qualify for FP services, including, but not limited to, which clinical conditions qualify for FP services, the exact services covered, and the time period for which patients are covered. ⁸ These mandates may be connected with or separate from mandates to cover routine infertility services.

A few studies have begun to characterize the different state mandates passed before 2022, but there are still relatively few resources available that readily enable an understanding of the differences among the state coverage mandates for FP, and the implications of those differences for patients. ^8–12 Additionally, published detailed policy reviews have only included mandates enacted prior to 2022, with later updates lacking specificity on the ways in which newer state mandates differ from one another. ^8,11,12

This paper aims to review existing state-level legislation of FP services available for iatrogenic infertility, characterize the heterogeneity of these mandates, and to also designate a set of standard dimensions by which to compare FP mandates to inform future, actionable policy recommendations.

Methods

The authors identified 18 states that have passed FP mandates through a list supplied by the Alliance for Fertility Preservation, a nonprofit organization that tracks FP legislative changes. ⁷ States with FP mandates for iatrogenic infertility passed from January 2017 through December 2024, when this analysis was finalized, were included. ^13–31

Each mandate was reviewed from individual state legislature websites by 2 reviewers independently, and dimensions by which to compare mandates were selected based on presence of each standard in the mandates. Contents of each mandate were then categorized by selected dimensions.

For this paper, the authors only considered “standard fertility preservation services,” as defined by the American Society of Reproductive Medicine guidelines, which include oocyte cryopreservation, ovarian tissue cryopreservation, ejaculated or testicular sperm cryopreservation (sperm banking), and embryo cryopreservation. This study did not require institutional review board approval as the analysis was conducted on publicly available legislative texts.

Results

Key Dimensions to Build a Framework for Understanding FP Mandates

Dimension 1: Which Clinical Conditions Are Covered?

Which clinical populations are covered by the FP mandate? Specifically, it delineates whether the mandate provides definitions of iatrogenic infertility, any clinical indications covered by the mandate, and whether other social demographics like sexual orientation or marital status are included.

Dimension 2: Which FP Services Are Covered?

What qualifies as a covered FP service? Namely, does the mandate specify a list of services like sperm banking, egg retrieval, embryo cryopreservation, among others? Does the mandate identify whether storage of cryopreserved tissue is included as an FP service?

Dimension 3: For How Long is Someone Covered?

Does the mandate specify the length of time for which this coverage applies? If the mandate describes storage of tissue, does it have a time limitation on how long health plans must cover storage? Does the mandate instead describe a maximum cost that effectively limits how long someone can receive FP services or storage?

Dimension 4: Which Health Plans are Included in the State Mandate?

Does the mandate to cover FP services apply to both public and private fully insured plans, and are there any exemptions, other than for the Employee Retirement Income Security Act of 1974 self-insured plans, by which a payer can opt out of offering FP coverage?

Results From Review of FP Coverage by State

Using these dimensions, the authors constructed a state-level analysis of each mandate, as seen in the Table. All state mandates defined iatrogenic infertility as someone undergoing chemotherapy, radiation, surgery, or other medically necessary treatment.

Table:

Comparison of state mandates on fertility preservation for iatrogenic infertility coverage

State	Year passed	Clinical diagnoses covered a	Medicaid covered	Reference to ASRM/ASCO guidelines	Sperm cryopreservation	Ooctye cryopreservation or OTC d	Embryo cryopreservation	Storage length	Cost cap	Religious exemption
RI 13	2017	All	No	Yes	Not specified	Not specified	Not specified	Not specified	$100,000 lifetime	Not specified
DE 14	2018	All	No	Yes	Yes	Yes	Yes	Not specified	Not specified	Yes
IL 15	2018	All	Yes	Yes	Not specified	Not specified	Not specified	Not specified	Not specified	Not specified
MD 16	2018	All	No	Yes	Yes	Yes	Not specified	Not specified	Not specified	Not specified
CA 17	2019	All	No	Yes	Not specified	Not specified	Not specified	Not specified	Not specified	Not specified
NH 18	2019	All	No	Yes	Yes	Yes	Yes	Duration of health policy	Not specified	Not specified
NY 19	2019	All	No e	No	Not specified	Not specified	Not specified	Not specified	Not specified	Not specified
CO 20	2020	All	No	Yes	Not specified	Not specified	Not specified	5 y, or until age 23	Not specified	Not specified
NJ 21	2020	All	No	Yes	Not specified	Not specified	Not specified	Excluded	Not specified	Not specified
UT 22,23	2021	Cancer only or requiring bone marrow transplant	Yes b	Yes	Yes	Yes	Yes	Not specified	5 years or until age 23 (if under age 18 at start of infertility)	Not specified
ME 24	2022	All	No	Yes	Yes	Yes	Yes	5 y	Not specified	Not specified
CT 25	2023	All	Yes c	Yes	Yes	Yes	Yes	5 y, or until age 30 (whichever is later)	Not specified	Not specified
DC 26	2023	All	No	Yes	Yes	Yes	Yes	Not specified	Not specified	Not specified
KY 27	2023	All	No	Yes	Yes	Yes	Not specified	1 y	Not specified	Yes
LA 28	2023	Cancer only	No	Yes	Yes	Yes	Unclear	3 y	Not specified	Yes
MT 29	2023	Cancer only	No	Yes	Not specified	Not specified	Not specified	Not specified	Not specified	Not specified
TX 30	2023	Cancer only	No	Yes	Yes	Yes	Not specified	Excluded	Not specified	Not specified
OK 31	2024	All	Yes	Yes	Yes	Not specified	Excluded	Not specified	Not specified	Yes

Note: Authors’ analysis of data from individual state legislation.

^a All indicates broad language without listing specific conditions that qualify.

^b Utah has applied for Medicaid waiver expansion to expand fertility preservation coverage to Medicaid beneficiaries, with separate legislation for privately insured individuals to receive fertility preservation services.

^c Connecticut requires all beneficiaries to have been on their plan (private or Medicaid) for 12 mo prior to eligibility.

^d OTC was deemed nonexperimental by ASRM as of 2020.

^e Senate Bill S719 only references ASRM guidelines for infertility diagnosis and treatment, not to define standard fertility preservation services.

ASCO, American Society of Clinical Oncology; ASRM, American Society for Reproductive Medicine; OTC, ovarian tissue cryopreservation.

FP and infertility treatment are not the same

Despite the intuitive overlap between FP and infertility treatment, namely, through IVF, they are rarely considered together in legislation. In fact, most of these state-level mandates were passed without any mention of IVF. When both IVF and FP were mentioned in the same bill, the target demographics for each category were markedly different.

Some states impose patient-specific restrictions on who is eligible for IVF, including whether a patient is “otherwise generally healthy,” married, participating in heterosexual intercourse, or in a specific age range. On the other hand, FP patients were largely exempt from these types of restrictions.

Broad language can be beneficial in providing for more inclusive patient coverage

As described previously, all states had similar definitions of iatrogenic infertility, typically listing a broad inclusion of “chemotherapy, radiation, or other medical treatment affecting reproductive capacity.” Using such inclusive language in the bill creates greater generalizability (ie, which patients are eligible for coverage). For most of the FP mandates, this means that patients other than those with a cancer diagnosis would be covered by the bill. However, in Utah, Montana, and Louisiana, despite the broad definition of iatrogenic infertility, later legislation narrowed the coverage to only oncology patients. This notably excluded transgender patients seeking gender-affirming hormone therapy from FP coverage. This highlights that FP legislation in some states may also be particularly influenced by broader sociopolitical stances on gender-affirming care and reproductive rights.

In terms of specific FP services covered, most states adopted language that deferred to national professional society guidelines, typically from the American Society of Clinical Oncology or the American Society for Reproductive Medicine, rather than listing specific covered services. This affords insurance policies flexibility in adapting to evolving guidelines and providing coverage of services as new therapies become standard of practice.

However, in some cases, this approach also left it unclear whether or not embryo cryopreservation was specifically covered under FP, as some guidelines define essential FP as sperm and egg banking only. Future legislation may benefit from increased clarity on whether embryo cryopreservation is also available for patients at risk of iatrogenic infertility. This especially becomes important given that restrictions are often placed on IVF with subsequent embryo storage in certain states, and it is unclear whether similar restrictions could be imposed on FP patients.

Further clarity on storage of cryopreserved sperm, eggs, and embryos is needed

The majority of state legislative texts did not mention whether storage fees for cryopreserved tissue are included under mandated health plan coverage. Two states explicitly mentioned that storage fees are not covered as part of their mandate. Five states have a cap on storage for a certain number of years or until a patient reaches a certain age, ranging between 25 and 30 years. Interestingly, this age can be below the median age of first-time parenthood (26 years for mothers and 31 years for fathers). ^32,33 This can increase the pressure patients may experience to utilize their preserved tissue by a certain age.

Lack of clarity on cryopreserved tissue storage is the aspect of FP coverage most under question because of the 2024 Alabama Supreme Court ruling in LePage v Center for Reproductive Medicine. ³⁴ As this court ruling equated embryos with children, many Alabama fertility clinics state-wide reacted in fear of litigation for discarding frozen embryos. Embryo cryopreservation storage is an important consideration in FP for iatrogenic infertility. If practioners in Alabama and other states become unable to discard embryos, it will become extremely expensive and logistically challenging to store embryos indefinitely. And it remains unclear to what extent practitioners and fertility clinic staff are liable for the storage of embryos. As the legal landscape changes in this space, it is imperative that FP legislation updates the language on cryopreservation tissue storage, both to clarify what costs are incurred by patients and mitigate litigious challenges for health care workers and staff in fertility clinics.

Most states do not yet cover Medicaid patients

Although many states have laws impacting commercial coverage for FP, there are not similar laws requiring Medicaid coverage. Many states specifically exclude Medicaid coverage for FP services. Perhaps this is not surprising because Medicaid benefit coverage decisions involve the expenditure of public, not private, funds and so are often the focus of political and budgetary constraints. Many disease burdens, particularly cancers, autoimmune diseases, and hematologic conditions, fall disproportionately on people of color and on low-income individuals, who are also often covered by Medicaid. ^35,36 State mandates that exclude Medicaid coverage perpetuate underlying disparities in health outcomes and in access.

Sperm banking and oocyte cryopreservation are expensive, with sperm banking ranging from $500–$1000 and a single oocyte cryopreservation costs often exceeding $5000, excluding yearly storage. ¹⁰ Storage costs may further exacerbate the financial burden of pursuing FP. The lack of Medicaid inclusion represents a major priority of further advocacy work for equitable access to FP. For states that do include FP coverage for Medicaid beneficiaries, there is little data on FP utilization rates before and after implementation of the state mandate. Here, research could be instrumental in garnering future support for expanded Medicaid coverage of FP.

Religious exemption can allow certain employers to exclude FP coverage

Legislative text on religious exemption allowing certain employers to opt out of paying for coverage of FP services is often broad, with limited detail on who qualifies as a “religious employer.” For example, in Kentucky, the FP mandate “does not apply … if the employer is a religious employer,” which is broadly defined as any “religious organization, not limited to religious [groups], corporations, association, school … or institution, regardless of whether it is affiliated with a church or house of worship.” ²⁷ This exemption also applies to religiously affiliated health care systems. In Connecticut, however, the wording is narrower (ie, a religious employer means an employer that is a "qualified church-controlled” organization or a “church-affiliated” organization). ²⁵

Additionally, not all mandates offer a timeline by which religious employers must opt out of offering this coverage, some states include a 40-day notice, although others do not. In addition, lack of legislative language clarity could theoretically exclude patients who are unmarried or who identify as LGBTQ+ on “religious” grounds.

Experimental treatments are often explicitly excluded from FP coverage, potentially limiting options for pediatric patients

All states explicitly mention that only nonexperimental FP treatments would be covered as part of their mandate. For patients who are assigned male sex at birth, sperm cryopreservation is their only FP option. For prepubertal males who are also interested in FP due to conditions like pediatric cancer, only experimental treatments are available, such as testicular tissue cryopreservation (TTC). ³⁷ Similarly, for pubertal males who are not sexually mature, testicular sperm extraction (TESE) is another alternative that is not always explicitly included in national guidelines or in any state mandate. ³⁷

Unlike traditional sperm banking, both TESE and TTC are invasive and may require some level of anesthesia during parts of their procedures. ³⁸ There are several ethical considerations associated with whether a pediatric patient can truly consent to an invasive procedure for FP. Nevertheless, it is important to highlight that FP mandates do not offer coverage for experimental procedures like TTC, which can be a consideration for pediatric patients.

Future Directions for FP Legislation

As indicated previously, there is a lack of consistency in coverage language among states which cover FP. From a research perspective, it is quite complex to fully identify every specific detail of each dimension of interest for every state mandate. As the language used in each mandate is unique and the legislative landscape has evolved over time, further policy reviews analyzing new state-level FP mandates as they are passed is needed, particularly for the 17 states with active legislation as of May 2025. ⁷ This becomes especially important when adopting an equity-focused lens to identify which specific patient populations are excluded from coverage and considering the potential need for new legislation. For now, the biggest opportunities for improvement in FP coverage include better access for Medicaid beneficiaries and transgender patients. In addition, it will be imperative to update legislative language on embryo cryopreservation storage coverage.

The authors recognize that it will be extremely unlikely for individual states to voluntarily agree to nationally standardized FP coverage benefits. The authors have instead proposed alternatives that could facilitate greater equity in FP coverage nationally. At the organizational level, having American Society of Clinical Oncology and American Society for Reproductive Medicine add specificity to their FP recommendations could result in broadened coverage for states that reference these guidelines in their own legislative language. At the federal level, changes to legislation defining EHB’s and required Medicaid services for beneficiaries can improve FP coverage. This could include seeking to amend the Social Security Act of 1965 Section 1905(2)(4)(C) to require states that want federal Medicaid matching grants to cover FP services for their Medicaid beneficiaries. The Patient Protection and Affordable Care Act of 2010 could also be amended to include FP services as EHB’s for all Americans covered by insurance plans. Future qualitative research can also utilize stakeholder interviews and surveys to further identify disparities in access to FP services and evaluate the implications of these mandates.

Conclusions

Patients at risk for iatrogenic infertility are clinically and demographically diverse. More inclusive legislative mandates would enable individuals at risk for iatrogenic infertility to pursue medically necessary treatment and preserve their ability to bear children in the future. Current state-level mandates are quite heterogeneous, and this paper offers a preliminary framework to compare coverage mandates. Areas for improved access include coverage for Medicaid beneficiaries, updating language to include embryo cryopreservation storage, coverage for transgender patients, and utilization studies to understand the impact of these mandates. Mixed method utilization studies in particular will be essential to understand not only current access gaps in coverage within each mandate, but also to identify realistic cost estimates of coverage by state population. Such studies will be critical in enhancing access to needed FP services. Future refinements of the framework will need to consider ongoing changes in the legal and regulatory landscape for FP and infertility to prioritize usability by clinicians, public health experts, and legislators to best advocate for this patient population.