New Pentagon Policy Expands In Vitro Fertilization Options for Severely Ill or Injured Troops

robotic hysterectomy for cervical dysplasia at Brooke Army Medical Center
Air Force Capt. (Dr.) Cynthia Sacco, OB/GYN chief resident, assists Army Col. (Dr.) Caela Miller, Department of OB/GYN deputy chief, with a robotic hysterectomy for cervical dysplasia at Brooke Army Medical Center, Fort Sam Houston, Texas, Feb. 2, 2022. (Jason W. Edwards/U.S. Army)

The Defense Department has widened its fertility treatment benefit for severely ill or injured service members to include coverage for unmarried service members and those who need to use donor eggs and sperm.

Under the new policy, announced Friday by Assistant Secretary for Health Affairs Dr. Lester Martinez-Lopez, troops with serious wounds or an illness that contributes to infertility may qualify for in vitro fertilization, or IVF, regardless of marital status and may use donated gametes procured at their own expense.

The policy also allows coverage of IVF and artificial insemination for a spouse, unmarried partner or a third-party surrogate of a qualifying active-duty service member if that individual qualifies for or is enrolled in the Tricare health program.

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But while the policy allows for surrogacy agreements, it prohibits any paid arrangements. Under the benefit, the DoD, as well as the service member, is specifically barred from paying a partner or surrogate any compensation, although they may request a waiver to cover travel expenses.

The new policy evolved as a result of a lawsuit brought against the DoD and the Department of Veterans Affairs by military and veterans advocates who said the benefit, originally for married service members and veterans, discriminated against single troops and same-sex couples.

As part of the case, attorneys for the DoD said in December they planned to change the policy but provided little detail. In January, VA officials said they would follow suit based on the DoD's policy.

On Monday, the VA announced that it would provide the same benefits to severely ill or injured veterans regardless of marital status and allow the use of donor eggs, sperm or embryos.

"Raising a family is a wonderful thing, and I'm proud that VA will soon help more veterans have that opportunity," VA Secretary Denis McDonough said in a statement. "This expansion of care has long been a priority for us, and we are working urgently to make sure that eligible unmarried veterans, veterans in same-sex marriages, and veterans who need donors will have access to IVF in every part of the country as soon as possible."

According to the policy, to be eligible, service members must have a "Category II" or "Category III" illness or injury -- serious enough to render a member unlikely to return to duty and likely to medically separate.

Such illnesses or injuries may be neurological, anatomical or physiological, according to the memo.

Military personnel who don't qualify and pursue IVF must pay a fee at one of eight military treatment facilities where it is offered or cover the entire cost at a private facility.

The VA previously covered in vitro fertilization and other types of assisted reproductive technology treatments for veterans with infertility related to a military-connected illness or injury.

Veterans who don't meet the requirements have access to fertility testing, medication, artificial insemination, cryopreservation of gametes and counseling.

In a statement, Kimberly Lahm, program director for the DoD's Health Services Policy and Oversight office, said the changes reflect the department's commitment to ensure equity in reproductive health services.

"We continue to identify ways to lean forward as much as we can in support of equity of access to reproductive health care for our service members," Lahm said.

The lawsuit plaintiffs, including representatives from the National Organization for Women, the Yale Law School Veterans Legal Services Clinic and the National Veterans Legal Services Program, said Monday that the coverage is welcome. But, they added, it does not go far enough and they will continue their litigation.

"This is substantial progress," Donovan Bendana, a second-year student at Yale Law School, said in a statement. "But the onerous requirement of linking infertility to a specific service injury will deny many service members the opportunity to build a family. This is especially arbitrary in light of the military's decades-long disinterest in studying women's health, including the impact of service on fertility."

Under the DoD policy, qualifying service members can seek fertility services at a military treatment facility or private sector with prior authorization.

The Defense Department will cost-share storage until a member separates from the service or retires, at which point the service member can continue storage at their own expense.

DoD also will have no role in issues regarding ownership, future use, donation or destruction of gametes or embryos, according to the memo. Those concerns are normally governed by state law.

The new policy allows for up to six cycles of intrauterine insemination, six egg retrieval treatments and three cycles of IVF.

Sen. Patty Murray, D-Wash., has worked more than a decade to expand veterans' access to fertility treatments. On Monday, she praised the VA for expanding coverage, calling it an "important step forward."

But given that the new rules continue to exclude many military service members, veterans and their families, Murray is pushing for a bill, the Veterans Families Health Services Act, which would require that the VA and DoD to expand treatment to more veterans and allow troops to freeze their eggs or sperm before deploying to combat or other hazardous assignments.

"Service members and veterans have sacrificed so much for our country -- but they should never have to sacrifice their ability to start a family," Murray said in a statement.

The new policy does not allow for cryopreservation of gametes prior to deployment, nor does it provide for extraction of gametes from deceased service members.

In 2019, the parents of a West Point cadet petitioned the court to have their son's sperm extracted while he was on life support following a skiing accident. A judge ruled in favor of the parents of Peter Zhu, giving them ownership of the cadet's frozen sperm for gestational purposes with a surrogate.

An attempt to reach Yongmin Zhu, Peter Zhu's father, for an update was unsuccessful.

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