In recognition of National Infertility Awareness Week (NIAW), our goal is to raise awareness not only about infertility and its prevalence but also about the legal aspects surrounding fertility.
Infertility affects people of all backgrounds and experiences, making it important to know what the fertility laws are in your state and how they could potentially affect your fertility journey. The legalities surrounding fertility treatments like in-vitro fertilization, treatment financing, or surrogacy differ from state to state.
California lawmakers have been pushing to make fertility treatments more accessible to individuals and couples of all backgrounds, regardless of socioeconomic background, gender identity, or sexual orientation.
If you’re an individual or couple considering starting your fertility journey, read on to learn about the top 5 California fertility laws you should know before starting fertility treatments.
Table of Contents
- 1. HSC § 1374.55: Insurance Coverage for Fertility Treatments
- 2. SB No. 600: Fertility Preservation Declared as Basic Health Care
- 3. SB No. 848: Employee Right to Reproductive Loss Leave
- 4. AB No. 2684: Parentage Rights for Nontraditional Conception
- 5. AB No. 1217: Legally Binding Surrogacy Agreements
- Make Your Mark
1. HSC § 1374.55: Insurance Coverage for Fertility Treatments
It’s no secret that fertility treatments can be costly. As a way to make fertility treatments more accessible financially, California Health & Safety Code (HSC) § 1374.55 mandates that every health care service plan in California offers insurance coverage for infertility treatment, with the exception of in vitro fertilization.
In simpler terms, this law requires health insurance plans that cover medical expenses like hospital visits or surgeries for groups of people, like employees of a company, to also offer coverage for treating infertility.
HSC § 1374.55 requires that fertility treatment coverage is offered through HMOs with at least 20 employees. However, if an employer is a religious organization, they don’t have to offer coverage for infertility treatments if it goes against their religious beliefs. This also applies to insurance plans owned by religious organizations.
Covered fertility treatments
In this law, it identifies infertility as either having a medical condition recognized by a doctor as a reason for infertility or not being able to get pregnant after a year or more of trying without birth control.
The fertility treatments covered by the insurance plans would include a range of diagnostic tests, medications, surgeries, and procedures used in assisted reproductive technologies. Unfortunately, in vitro fertilization is not covered under this California law.
However, California lawmakers have been pushing to pass Senate Bill (SB) No. 729, where IVF would be included in the fertility treatments covered by insurance plans. SB 729 has not yet been passed and assembly has been postponed to an undecided date in 2024.
2. SB No. 600: Fertility Preservation Declared as Basic Health Care
Senate Bill No. 600 is a California fertility preservation law. SB 600 states that health insurance coverage for fertility preservation services is mandated when medical treatments could potentially cause infertility.
The fertility preservation services pertain to individuals whose fertility may be impacted due to medical treatments such as chemotherapy, radiation, and/or surgery.
SB 600 declares that standard fertility preservation services like egg freezing and sperm freezing are considered basic health care services. Meaning, that insurance plans have to cover these services, even if they typically do not cover infertility treatments.
This California fertility law aims to support individuals undergoing treatments that might affect their ability to have children, providing them with the option to preserve fertility without financial burden.
Exceptions
SB 600 only applies to health insurance plans regulated by the state like HMOs and Managed Care Plans. At this time, it does not apply to certain government healthcare plans.
If you get your health care through certain Medi-Cal plans or through organizations that work with the California State Department of Health Care Services, covered fertility preservation services don’t apply to you.
3. SB No. 848: Employee Right to Reproductive Loss Leave
Struggling with infertility is not only physically challenging but also mentally and emotionally difficult. Senate Bill No. 848 protects employees who are going through difficult reproductive experiences.
SB 848 introduces a new section to the Government Code that declares employees are allowed to take up to five days off of work due to a reproductive loss event.
A reproductive loss event is an event in which something occurs that prevents the individual from becoming pregnant or a parent as intended.
Reproductive loss events are defined in this bill as:
- Miscarriages: When a pregnancy ends before the baby can survive outside the womb.
- Failed Adoptions: When an adoption doesn’t happen because of problems with the adoption agreement or because someone contests the adoption.
- Stillbirths: When a baby is born dead after at least 20 weeks of pregnancy.
- Failed Surrogacies: When a surrogacy agreement falls apart or when an embryo transfer to the surrogate isn’t successful.
- Unsuccessful Assisted Reproduction: When an attempt at assisted reproduction like intrauterine insemination (IUI), in vitro fertilization (IVF), or other fertility treatments don’t result in a successful pregnancy.
Reproductive Loss Leave
According to California law, employees are entitled to take up to five days off work in the event of a reproductive loss. If an individual experiences more than one event in a year, they can take up to 20 days off in total.
This law is meant to protect employees who are going through difficult reproductive experiences. It ensures they have time off to deal with these events without fear of losing their job or facing discrimination at work.
Employees can take this leave within three months of the reproductive loss event. If they’re already on leave for another reason when the event happens, they have three months from when that other leave ends to take their reproductive loss leave.
If the employer has a policy for other kinds of leave, like vacation days or sick leave, employees can use those. However, if the employer doesn’t have a policy, the reproductive loss leave might be unpaid.
4. AB No. 2684: Parentage Rights for Nontraditional Conception
As of January 1, 2020, Assembly Bill (AB) No. 2684 has been added to California’s Uniform Parentage Act to increase access to the Parentage Opportunity Program, acknowledging diverse modern families and ensuring equal treatment to same-sex parents, transgender parents, and their children.
The amendment in the Uniform Parentage Act allows both different-sex and same-sex parents who conceived using assisted reproduction to use the Voluntary Declaration of Parentage process to establish legal parentage.
The Parentage Opportunity Program is a program in California designed to help unmarried parents establish legal parentage for their children more easily and affordably. This program allows parents to establish legal rights and responsibilities for their child(ren) without having to go to court.
Now, the Parentage Opportunity Program includes circumstances where a child is born through sperm donation or egg donation, for both different-sex couples or same-sex couples.
The addition of AB 2684 expands legal protections for family relationships as every family may look different.
For same-sex couples
In the cases of same-sex couples, according to California Family Code § 7573, to utilize the Voluntary Declaration of Parentage process, at least one individual of the couple has to be genetically related to the child. The genetic relationship can be established through sperm donation, egg donation, or giving birth without the use of egg donation.
In cases of surrogacy or adoption, there are other legal ways of establishing parenthood through binding surrogacy agreements or adoption papers.
5. AB No. 1217: Legally Binding Surrogacy Agreements
Assembly Bill No. 1217 regulates California surrogacy, where a woman carries a child for another person or couple. AB 1217 was mandated to solidify the parental establishment in surrogacy agreements.
AB 1217 specifically details California gestational surrogacy agreements. Gestational surrogates are not genetically related to the child.
With concern over legal parentage due to the nature of surrogacy, AB 1217 regulates the specific requirements in the contractual agreement between the surrogate mother and the intended parent(s).
In California, this law requires that both parties involved, the surrogate and the intended parent(s), have to have separate legal representation. This is to ensure that both parties’ interests, such as parent-child relationships and compensation, are protected.
This law also states that the surrogate agreement must include specific information, such as:
- The date the agreement was signed.
- Details about the origin of the donated sperm or eggs used in the conception.
- Identification of the intended parent(s).
All parties involved must sign this agreement and the signatures are required to be notarized or witnessed by an equivalent method of confirmation that is required in the area where the agreement for the surrogate is taking place.
If the agreement is completed successfully and all requirements have been met, then the surrogacy agreement is valid and legally binding, therefore establishing legal parentage for the intended parent(s).
After the Surrogate Agreement is signed
The law states that no further action can be taken until the surrogacy agreement has been properly signed and completed.
The bill prohibits parties from undergoing the embryo transfer procedure or starting medication for assisted reproduction until the surrogacy agreement is fully executed. This makes sure that everyone involved understands and agrees to the terms before any medical procedures begin.
In addition, once the agreement has been signed the intended parent(s) can initiate legal action to establish the parent-child relationship before the child is born.
Make Your Mark
Infertility affects 1 in 6 people worldwide, meaning almost as much as 20% of the population is facing barriers when it comes to building their families. With fertility laws differing from state to state, some people may not only face physical barriers to family-building but also legal barriers.
By bringing awareness to infertility during NIAW, let’s make our mark by signing Resolve’s petition to show we stand up for pro-family legislation and believe in fulfilling dreams of family.
California lawmakers have been pushing for more pro-family laws to make starting a family more accessible to those who are struggling with fertility challenges. The fertility laws mentioned are laws specific to California.
It is important to know the fertility laws in your area before beginning your fertility journey as they could potentially affect how you grow your family.
