The paper Who Gets to Have a Baby in America? On the High Cost of Fertility in America makes the case that the US treats fertility care as something extra rather than something people are entitled to. The point is straightforward: those who wish for children but lack the means to raise a family find themselves caught up in a system that punishes them based on their income, their relationship status, and whom they love.
The paper opens with a history lesson. For centuries, some groups have been encouraged to reproduce while others have been punished for doing so. Queens celebrated for bearing male heirs. Early twentieth-century “Better Baby” and “Fitter Family” contests that judged people by appearance. Nazi Germany’s Lebensborn program, which supported the births of children to “racially valuable” mothers while carrying out an extermination campaign against those deemed genetically inferior, including forced sterilizations.
The targeted approach toward childbearing, which researchers label selective pronatalism, has been around for a long time. It continues into the present day, occasionally embedded in legal codes. Individuals like Irena remain unable to carry children within their own borders. According to the paper, this targeted approach finds its way into insurance coverage, clinic criteria, and government regulations.
A Global Statement of Shared Values
International law provides the foundation for the argument made here. The Universal Declaration of Human Rights stands as the world’s most widely accepted statement of shared values, and it includes Article 16, which affirms that “Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family.”. A UN report notes a consensus that “where in vitro fertilization is available within a State, it must not be unduly restricted.”.
The Inter-American Court of Human Rights ruled in 2012 that a Costa Rican court’s prohibition on in vitro fertilization breached the human right to private and family life and the human right to found and raise a family. Still, there is no settled legal determination anywhere that access to fertility care, for those who require it, constitutes a right.
Defining Infertility
Some argue that fertility care is simply basic healthcare and should be universally accessible. In 2009, the World Health Organization defined infertility as “a disease of the reproductive system” that could be diagnosed after a year or more of “regular unprotected sexual intercourse” had failed to produce a pregnancy.
If infertility is a disease, then procedures such as intrauterine insemination (IUI) and in vitro fertilization (IVF) are at least its best available treatments. But the paper notes that any attempt to define “regular” sex inevitably leaves questions in its wake. What is “regular”? Once a week? Twice? With mood lighting?
Once there is agreement on what a definition means, other questions come up at once. Who gets to receive these treatments? Who bears the cost? How large should it be?
Mara Pellittieri’s Fight
When Mara Pellittieri, a communications professional from Takoma Park, Maryland, and her spouse attempted to use infertility coverage through her spouse’s employer, Stanley Black & Decker, they encountered the very issue that stands at the center of the story: the spouse had been assigned female at birth.
The insurance policy at the time allowed heterosexual couples to get an infertility diagnosis after “one year of unprotected inter-course”, while queer couples were required to undergo six failed rounds of IUI before qualifying. Those rounds of IUI carry only a 20 percent success rate, and they can cost anywhere from $500 to $4,000.
Pellittieri and her spouse were daunted by the expense. “The person working at the insurance company felt really bad about it,” Pellittieri recalled. “They apologized for it.” But the policy, with its strictly physiological definition, was immovable.
A Broader Definition of Infertility
In a 2018 paper, the bioethicist Lisa Campo-Engelstein and the physician Weei Lo proposed that an infertility diagnosis should be available to anyone who, during a twelve month period, possesses the “intent” to conceive but cannot “due to social or physiological limitations.”
Round after round of IUI, Pellittieri and her husband endured them all as they worked toward six attempts. The fifth try brought an unexpected pregnancy, yet she told the paper that their happiness came mixed with a sobering truth: to have their second child, “We’ll have to go through this all over again.”
Equality as a Starting Point
Legal experts have made the right to equality their foundation when arguing for access to fertility care. A former research scholar at Yale Law School named Faren Tang has written that discriminating against people depending on whether they will have sex with someone who can get them pregnant is unconstitutional, citing principles of liberty and equal protection under the Fourteenth Amendment.
A number of US states that require insurance coverage for fertility treatments now recognize a condition known as “social infertility,” which applies when a person’s inability to become pregnant stems from their situation rather than their body.
The American Society for Reproductive Medicine
The fertility sector’s main professional organization, the American Society for Reproductive Medicine, updated its definition of infertility in 2023, adding “The need for medical intervention, including, but not limited to, the use of donor gametes or donor embryos in order to achieve a successful pregnancy either as an individual or with a partner.” to the description.
The update acknowledges, without naming them directly, the social forces that keep couples like Talia and Maggie from conceiving, or women like Arghavan from being able to do so on their own.
The Limits of Help
The study poses a question about the outer bounds of assistance on this subject. It states the issue plainly: individuals desiring offspring are being priced out of the capacity to produce them, while legal protections lag behind.
The central question that shadows the entire debate is this: if infertility qualifies as a right, if IVF carries the weight of a human right, then whose hands hold that right, and under what conditions?
Key Figures in the Case
- Mara Pellittieri, the communications professional from Takoma Park, Maryland, whose spouse was assigned female at birth
- Stanley Black & Decker, her spouse’s employer, whose insurance policy required six failed IUI attempts for queer couples
- Lisa Campo-Engelstein and Weei Lo, the bioethicist and physician who proposed a broader definition of infertility in 2018
- Faren Tang, the former Yale Law School research scholar who argued that fertility coverage should not discriminate by relationship status
The Road to Universal Coverage
The argument at the center of the paper is that fertility care should be considered basic healthcare. It backs this up with the WHO definition of infertility as a disease of the reproductive system. It also points to the UN report and the Inter-American Court ruling. The Yale scholar’s constitutional argument is cited as further support for this position.
Stanley Black & Deckers approach shows how companies handle this issue. Straight couples receive a diagnosis after twelve months. Gay couples must fail six IUI attempts before getting coverage, each attempt costing between $500 and $4,000, with a success rate of just 20 percent per try.
The Paper’s Final Question
The final section of the paper poses a question about boundaries. It wonders whether there are limits to this assistance, and leaves that question unanswered.
| Stage | Timeframe | Requirement |
|---|---|---|
| Heterosexual couple diagnosis | One year of unprotected intercourse | Standard coverage |
| Queer couple diagnosis | Six failed IUI attempts | Required before coverage |
| IUI attempt | Per round | Success rate of 20 percent |
| Pregnancy achieved | After five attempts | Fifth try succeeded |
There is strong support for the paper’s argument, and the evidence backs it up. The law lines up with it too. Still, the question has not been settled yet.
Source material: “Who Gets to Have a Baby in America? On the High Cost of Fertility in America,” Literary Hub.
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