KD is a woman who has struggled to create a family. She went through six pregnancies, only one of which resulted in the birth of a child. During her sixth pregnancy KD experienced a hemorrhage due to the rupture of her uterus, which was then removed in an emergency procedure. During the procedure her fallopian tubes were also closed surgically. KD is unable to conceive and carry a child naturally; however, she is able to have a child using her own eggs and the assistance of a gestational surrogate.
KD applied to the Ontario Health Insurance Plan (“OHIP”) for funding for the first two phases of in-vitro fertilization (“IVF”) during which eggs are retrieved from her body. She was prepared to pay out-of-pocket for the phase in which an embryo is transferred to the surrogate.
OHIP denied her request, citing the fact that the service is not insured in Ontario. KD appealed that decision to the Health Services Appeal and Review Board (“HSARB”), a legal tribunal that makes decisions about which services are insured by OHIP. The issue before the Board was whether KD qualifies for payment for IVF under an exception in the legislation.
Ontario’s Health Insurance Act, Regulation 552, states that IVF is insured by OHIP only to address infertility due to complete bilateral anatomical fallopian tube blockage that did not result from sterilization. Other causes of infertility are not listed as exceptions and are therefore not reasons for which a person would receive IVF funding from OHIP.
In March 2013 the Board released its decision. Quite simply, KD was not infertile “due to complete bilateral anatomical fallopian tube blockage that did not result from sterilization.” Therefore, the Board found that IVF funding is not an insured service for KD and she would have to fund the very expensive procedure on her own.
Women and men in Ontario have sought funding for assisted reproduction for years. Cases with virtually the same facts, all involving infertility for medical reasons, have been brought to HSARB several times since the Health Insurance Act limited IVF funding. Consistently, the reason for infertility did not fall within the narrow exception in the regulation and funding was denied. One couple attempted to characterize this as a human rights matter (that funding was provided for female infertility but not male infertility), but the Board did not have the legal authority to decide whether the law was invalid for this reason.
Individuals and couples undergoing IVF, intracytoplasmic sperm injection (“ICSI”) and other forms of assisted conception will have to continue to look elsewhere for financial assistance as the stringent funding regulations continue to be upheld.
UPDATE: Please see our blog from April 2014 entitled “Ontario Government to Fund IVF“.
Note: If you are planning to pursue IVF with a partner, you may wish to consider entering into an Embryo Disposition Agreement with your partner.
If you have any questions about OHIP funding, HSARB appeals or third party reproduction, please contact Lisa Feldstein Law Office or visit our Services page.
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