Using Egg Freezing for Non-Medical Reasons: Fertility Insurance or False Hope? - Legal, Ethical, and Policy Considerations

Abstract

Although there has been a lot of popular press and internet chatter about egg freezing, there is little in the legal literature that examines the legal, ethical, and policy issues involved with egg freezing. Egg freezing has not yet stirred up debate in academic discourse the way that other reproductive technologies, such as gestational surrogacy and pre-implantation genetic diagnosis have. This Article tries to fill that gap with a comprehensive look at this new technology. Part I of this Article describes the science and statistics related to egg freezing — from how it came about as a fertility preservation method for medical patients facing the loss of fertility to how it has evolved into an option for all women who may wish to delay fertility. Part II of this Article provides an overview of the legal landscape for egg freezing both for medical and non-medical reasons. I highlight the potential importance of informed consent in the egg freezing process, especially in the context of those women who may delay fertility based upon an expectation that their frozen eggs are likely to work when “thawed out,” even though that may not be the case. There may be conflicts at interest at play here because fertility clinics stand to financially benefit every time a woman decides to freeze her eggs. In this section, I consider what informed consent for egg freezing may look like and how tort law should play a part in encouraging disclosure of risks related to egg freezing. Part III of the Article describes insurance coverage for infertility and egg freezing. In this Part, I describe how the popularity of social egg freezing could hinder policy efforts to get insurance coverage for infertility more generally. In Part IV, I analyze other policy and ethical critiques of social egg freezing. I consider how the lack of insurance coverage for egg freezing determines the population able to take part in egg freezing and how women of color and poor women are less likely to be able to jump on the egg freezing bandwagon. I also discuss the potential negative effects of egg freezing on maternity leave, flexible work policies, and work/life balance. This section also considers how egg freezing contributes to the medicalization of reproduction and other related ethical issues. Finally, I describe how a relational autonomy model is better for the egg freezing context than the individual autonomy construct typically used in informed consent jurisprudence.