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Tales from the Trenches: It’s Time To Do Something About Fertility Care Access In Colorado

Updated: Mar 25

I’ve had the great honor of building a niche legal practice in Colorado. That niche is in the field of “assisted reproductive technology law,” also known as “ART” law. Who even knew that was a practice area of law?! And it has nothing to do with paintings and sculptures! I spend my days working on contracts and advising on legal risks when hopeful parents-to-be turn to egg, sperm, or embryo donation or surrogacy to have a child—or a person offers to be a donor or surrogate.


Working with attorneys, regardless of how pleasant I may be, is not usually anyone’s first choice. But honestly, only a fraction of people make it as far as talking to an attorney. For many Coloradans, even basic fertility treatments are financially out of reach. Despite the fact that one out of every eight couples of reproductive age are affected by infertility, only a small percentage of those affected in Colorado have insurance coverage to offset the costs. And with a single round of in vitro fertilization (IVF) costing $10,000-$20,000 out of pocket, with no guarantee of success, many Coloradans lack the financial ability to realize their dreams of parenthood.



Fertility Care Access Is Not New. And We Are Not Alone.


Amy Demma, an ART attorney colleague of mine in New York, described seeking fertility treatments in Colorado twenty-five years ago. She remembers sitting in a clinic waiting room reading through a pamphlet from RESOLVE—a prominent national infertility organization—urging patients to reach out to Colorado legislators to ask that the state require insurers to cover fertility treatments as standard medical care.


Twenty-five years later, the problem persists. However, there is good news for some Americans. Seventeen states across the U.S. have passed infertility insurance laws to increase patient access to fertility care. Just a few months ago, California passed legislation to ensure that those going through cancer treatment would have health care coverage to preserve their fertility—cryopreserving the patient’s eggs or sperm—to maintain the ability to have genetic children after cancer treatment.


We now have positive movement in Colorado! In the upcoming 2020 legislative session, Colorado State Representatives Kerry Tipper and Leslie Herod will introduce The Building Families Act. This legislation is simple and straightforward. It recognizes infertility for what it is—a medical condition—and provides that Colorado healthcare policies include coverage for reasonable fertility care costs. The effect of this legislation would be financially and personally life-changing for many.


Dr. Sara Barton, a reproductive endocrinologist with Colorado Center for Reproductive Medicine, described to me the sharp contrast in her medical practice in Colorado compared to her prior fertility practice in Massachusetts. The Bay State mandates fertility care insurance coverage. When Dr. Barton practiced medicine in Massachusetts, she would sit down with her patients and explain their diagnoses and options for treatment. In Colorado, Dr. Barton similarly explains diagnoses and options for treatment, but in sharp contrast, she then must counsel patients on the substantial costs of fertility treatments. Unfortunately, such treatment options are not financially feasible for many patients.



Health Care Costs May Actually Go Down


For those with reservations about the Act, the most common objection heard to fertility care insurance laws is the fear that insurance premiums will go up, along with the attendant cost of medical care generally. To the contrary, New Hampshire successfully passed a fertility access bill last year based partly on evidence that insurance coverage for fertility care actually reduces overall health care costs.


Wait, how is that? Well, interestingly, New Hampshire’s statistics reveal that patients with fertility coverage tend to opt for safer, less medically expensive procedures. Specifically, in the context of IVF, when patients had fertility coverage, they were less likely to transfer more than one embryo during a given embryo transfer procedure. On the other hand, those without insurance were more likely to opt for risky, multiple embryo transfers in a single procedure.


In these patients’ minds, it is better to risk twins or triplets in a resulting pregnancy than to have a transfer fail and to not be able to afford another round of treatment. But you probably already know that twins, triplets, and, yes, even octuplets, often come with astronomical medical bills due to the increased risk of pre-term birth and lengthy NICU stays. Those costs, related mostly to delivering a baby prematurely, are generally borne by insurance providers and are ultimately paid for by “everyone” through the cost of higher insurance premiums. According to the New Hampshire numbers, insurance coverage for fertility care was expected to result in savings of $80,000 or more per pregnancy. So it’s a win-win we’re talking about now. Healthier pregnancies result in saving everyone health care costs.


How Can I Help?


Most of us know someone who has experienced, or is currently experiencing, the struggles of infertility. I am pleased to announce that the Colorado Women’s Bar Association has officially committed its support for The Building Families Act.


For those interested in learning more or getting involved, I recommend connecting with Colorado Fertility Advocates, a non-profit organization dedicated to supporting best practices in ART for professionals and individuals in Colorado. On January 15, 2020, at 6:00 pm, Colorado Fertility Advocates will be hosting an educational panel on “Infertility and Its Cost Obstacles.” On February 6, 2020, Colorado Fertility Advocates, together with RESOLVE, will be hosting Colorado Advocacy Day for those interested in fertility issues to speak directly with state Senators and Representatives. Join the growing movement to bring fertility coverage to everyone in this great state of ours.


March 25, 2020 UPDATE:

The CWBA has been instrumental in assisting HB20-1158 The Colorado Building Families Act to pass the Colorado House of Representatives and Senate with bipartisan support.  Passage from the Senate took place on Saturday, March 14, hours before the legislature voted to take a historic recess in response to the Covid-19 pandemic. HB20-1158 supports Colorado families struggling with infertility and those needing family-building assistance. The bill made it to the Governor's desk this week for his consideration.


Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and the co-founder of Colorado Surrogacy, LLC, a Colorado-focused surrogacy matching and support organization. Ellen co-hosts the podcast I Want To Put A Baby In You and writes a weekly column for abovethelaw.com on assisted reproductive technology legal issues. Originally from northern New Mexico, Ellen attended undergrad at the University of California, Berkeley, and law school at Emory University in Atlanta, Georgia. In 2018, she was named by Denver Business Journal as one of Denver’s 40 Under 40. Unfortunately, she is no longer under 40. You can wish her a happy birthday later this month.