Written by William & Mary Law Student Brooke Shaffer

Veterans are entitled to medical benefits necessary to restore “the quality of life . . . that has been lost due to illness or injury” during service. [1] But this promise rings empty for veterans with service-connected reproductive injuries hoping to start a family. In vitro fertilization (IVF) is one of the few procedures not covered by the VA, joining elective cosmetic surgery and spa memberships as one of the handful of explicit exclusions designated by federal regulation.[2]

Due to the nature of current military conflicts, particularly combatants’ reliance on improvised explosive devices (IEDs), the need for IVF assistance is greater than ever before.[3] Even if soldiers manage to avoid major external injuries, the force of IED blasts can damage testicles’ sperm production and the fallopian tubes.[4] Between 2000 and 2013, nearly 2,000 service members suffered debilitating injuries to their genitals.[5] An additional 307,000 experienced brain injuries that can render sex physically impossible or destroy one’s sex drive.[6] Thousands more have received spinal-cord injuries with a similar impact on reproductive ability.[7]

With nearly half of all enlisted personnel under the age of twenty-six, many of these injuries strike veterans in their reproductive prime.[8] The sudden inability to conceive can be a psychologically devastating blow for veterans already struggling to adapt to life-altering combat injuries.[9] This may be further compounded by marital strain as spouses cope with the realization that they may not be able to have the family they’d envisioned.

Unlike veterans, active-duty service members returning home from combat with genital injuries currently have access to IVF.[10] However, they must undergo the treatments before separating from the military.[11] For couples navigating the initial stages of recovery, it is often survival—not family planning—that is the priority. As a result, although the Department of Defense began covering IVF for wounded soldiers in 2012, only twenty service members have taken advantage of the policy. [12] By the time a couple is ready to try for children, the veteran has likely already been discharged and had his health care transferred to the VA. The narrow window to receive IVF treatment may close before a couple is even aware that a disparity between Tricare and VA coverage exists.

The VA’s ban was first adopted nearly a quarter of a century ago, when IVF was still a new treatment.[13] As fertility technology has improved and become more mainstream, many of the safety concerns behind the initial ban no longer hold true.[14] However, questions about affordability and effectiveness remain valid. The average cost of a single round of IVF is $12,400,[15] and less than half of these procedures are successful, even when performed on healthy women.[16] The price tag of covering fertility treatments through the VA would total more than $500 million over four years.[17] However, options for balancing the budget and veterans’ needs do exist, such as limiting the number of IVF attempts per couple.

In addition to budget concerns, abortion politics often underlie conservative opposition to reform in Congress. Because some unused embryos may be discarded after treatment, coverage of the procedure has become controversial.[18]

As a result, multiple bills to overhaul the VA fertility treatment policy have died in Congress, including the latest attempt last year.[19] The proposal would have covered IVF treatments, as well as adoption and surrogacy, and would have been funded through a reallocation of combat operations spending.[20] Conservatives in the Senate blocked the legislation, citing the need to first address other problems at the VA, such as the patient backlog.[21]

But treatment for these wounded veterans should not be politicized or trivialized. Tricare’s coverage of the procedure indicates a real need for the procedure, which cannot be automatically dismissed when an individual’s status changes from active-duty to veteran. Furthermore, veterans’ entitlement to medical care includes treatment for mental and emotional, as well as physical, wounds. If a service-connected injury has jeopardized a veteran’s dream of having a family, the government is obligated to offer the best treatment available to remedy this loss.

Currently the VA only covers fertility counseling and a few older, less advanced procedures such as intrauterine insemination, which uses a catheter to insert semen into the uterus.[22] While this method helps some veterans conceive, it is often physically impossible for those with IED-related injuries, such as damaged fallopian tubes.[23] IVF, which combines the egg and sperm in a laboratory before transfer to the uterus, is often the only way couples can bypass this obstacle to conception.[24]

For the next few months, private providers are helping partially close the gap in coverage. Fertility clinics across the country are offering discounted IVF services to wounded veterans in an effort to motivate Congress to take action.[25] The campaign will run until the VA ban on IVF is lifted or the 2016 legislative session ends.[26]

In the long term, the most effective solution absent Congressional action may be to improve proactive efforts to combat infertility. In January 2016, the Department of Defense unveiled a new initiative to offer sperm and egg freezing to active-duty service members preparing for deployment to combat zones.[27] Completing this initial step in the IVF process before any injury occurs could reduce the pressure to make immediate family planning decisions and lower costs of the procedure even after leaving the Tricare system. But with the average eighteen-year-old recruit lacking the foresight to plan for a future family, any long-term strategy to assist veterans with infertility must eventually address the VA’s IVF ban.

 

[1] 38 C.F.R. § 17.38 (2011).

[2] Id.

[3] Emily Wax-Thibodeaux, What Veterans Affairs Won’t Pay For: Chance For the Wounded to Have Kids, Washington Post (May 25, 2015), https://www.washingtonpost.com/politics/for-combat-veterans-va-ban-on-ivf-coverage-adds-insult-to-injury/2015/05/25/a5ae2940-fd8b-11e4-833c-a2de05b6b2a4_story.html.

[4] Senate Bill Would Expand Fertility Coverage for Veterans, Fox News (Aug. 18, 2012), http://www.foxnews.com/politics/2012/08/18/senate-bill-would-expand-fertility-coverage-for-veterans.html.

[5] Patrica Kime, D.C. Conference to Focus War Wounds’ Impact on Sex and Intimacy, Military Times (Dec. 8, 2014), http://www.militarytimes.com/story/veterans/2014/12/08/sex-intimacy-combat-injuries-war-wounds/20100725/.

[6] Id.

[7] Wax-Thibodeaux, supra note 2.

[8] Patricia Kime, Military’s New Fertility Benefit Will Let Troops Freeze Their Sperm and Eggs, Military Times (Jan. 29, 2016), http://www.militarytimes.com/story/military/benefits/health-care/2016/01/29/militarys-new-fertility-benefit-let-troops-freeze-their-sperm-and-eggs/79511918/.

[9] Supra note 3.

[10] Wax-Thibodeaux, supra note 2.

[11] Id.

[12] On Veterans Day Please Urge your Member of Congress to Co-Sponsor HR 2257, Ending the Ban on IVF at the Dept. of VA, Am. Soc’y for Reproductive Med. (last visited Feb. 28, 2016), http://capwiz.com/asrm/issues/alert/?alertid=68505626&queueid=%5Bcapwiz:queue_id%5D.

[13] Id.

[14] Id.

[15] Is In Vitro Fertilization Expensive?, Am. Soc’y for Reproductive Med. (last visited Feb. 28, 2016), https://www.asrm.org/detail.aspx?id=3023.

[16] Charlotte Alter, Pentagon Offers Egg-Freezing, But What If Women Are Drafted?, TIME (Feb. 5, 2016), http://time.com/4207779/egg-freezing-pentagon-army-draft-women/.

[17] Cong. Budget Office, S. 131, Women Veterans and Other Health Care Improvements Act of 2013, available at

https://www.cbo.gov/publication/44514.

[18] Quil Lawrence, For Fertility Treatment, Wounded Veterans Have To Pay The Bill, NPR (Feb. 17, 2016), http://www.npr.org/sections/health-shots/2016/02/17/467073198/for-fertility-treatment-wounded-veterans-have-to-foot-the-bill.

[19] Wax-Thibodeaux, supra note 2.

[20] Id.

[21] Lawrence, supra note 19.

[22] Alexandra Zavis, Badly Wounded Veterans Lobby for Fertility Treatment, L.A. Times (Dec. 14, 2012), http://articles.latimes.com/2012/dec/14/local/la-me-veterans-fertility-treatment-20121215.

[23] Id.

[24] Id.

[25] Serving Our Veterans: Discounted Fertility Treatments for Wounded Warriors, American Society for Reproductive Medicine (Nov. 10, 2015), http://www.asrm.org/IVF4VETS_Serving_Our_Veterans/.

[26] Id.

[27] Kime, supra note 7.