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The revision of the French bioethics law and the questions it raises for the future of funding for egg freezing

Published:December 08, 2021DOI:https://doi.org/10.1016/j.rbmo.2021.12.002

      Abstract

      After two years of parliamentary discussion, Emmanuel Macron's government in France enacted the new bioethics law. What stands out in the revision of the bioethics law is the decision to offer partial reimbursement of the clinical procedure costs of ‘non-medical’ egg freezing; making France the first country in the world to do this. Our contention in this brief commentary is that the recent change in the French law presents an opportunity to reflect on the provision of public funding for egg freezing, including for what reasons funding is justifiable. The medical/non-medical distinction is used to distribute funding for egg freezing in many jurisdictions, worldwide. However, under the revised French bioethics law, this is the first instance where, for the purpose of determining eligibility for funding, the reason for egg freezing is irrelevant as public funding is available for both medical and non-medical egg freezing. This challenges the justification of using the medical/non-medical distinction within funding policies and prompts further consideration about whether this distinction is still relevant to funding decisions.

      Introduction

      After two years of parliamentary discussion, contestation and lobbying by some moral actors such as the Catholic Church and LGBTQI groups, Emmanuel Macron's government in France enacted the new bioethics law on August 2nd, 2021 (LOI n° 2021-1017 du 2 août 2021 relative à la bioéthique). This law introduces a range of new measures, affecting different areas of assisted reproductive technology (ART), such as the cessation of donor anonymity, access for singles and lesbian couples, and allowing egg freezing for non-medical reasons. Although somewhat controversial, the demand for this last practice, also commonly referred to as ‘social’ or ‘elective’ egg freezing, has increased widely in recent years; mostly by women without a partner who desire more time to start a family. The financial cost is frequently highlighted as a significant barrier to access egg freezing but women's attitudes toward how this procedure should be financed vary greatly (Platts et al., 2021).
      The French bioethics law was for many years exemplary of strict state regulation and in contrast to other western countries that were more liberal in their organization of and access to reproductive services. It is well-documented that French women often travelled to nearby countries, such as Belgium and Spain, to evade the restrictive ART legislation in their home country. Except in instances of an iatrogenic threat to fertility (e.g., some gonadotoxic cancer treatments), egg freezing was only permitted for use if women agreed to donate a proportion of the eggs collected. The revision of the bioethics law represents a paradigm shift from France being the obvious counterexample, to instead emulating other nations by permitting access to egg freezing for reasons beyond just ‘medical’ threats to fertility. However, what sets France apart from other nations is the decision to offer partial reimbursement of the clinical procedure costs of ‘non-medical’ egg freezing; making France the first country in the world to do this. Moreover, it is notable that the new law limits non-medical egg freezing to the public and non-for-profit hospital sector as well as prohibits companies based in France from offering to subsidise the costs of egg freezing for their employees; a growing trend popularised by Apple and Facebook. Consistent with previous legislation, the principle of non-commodification appears to be at the core of the new French law and seems to be in contrast with the financialization of egg freezing or more broadly fertility observed in other nations such as the USA (van de Wiel, 2020).
      Our contention in this brief commentary is that the recent change in the French law presents an opportunity to reflect on the provision of public funding for egg freezing, including in what instances funding is justifiable.

      Background of funding egg freezing

      The request for egg freezing by women without a medical reason for fertility preservation, has triggered a lively societal debate for more than a decade around issues such as the emancipation and medicalization of women's bodies, the impact on employment and gender equality, and the transformation of heteronormative kinship relations. One morally contentious question that is interconnected with the previous issues and was addressed quite extensively early on, is the question of who should pay for non-medical egg freezing (Mertes and Pennings, 2012). In theory there seems to be sound arguments for reimbursing women if the frozen eggs are effectively used in reproduction (for personal use or through donation to others in need), as this may help reduce the number of treatment cycles needed to achieve a viable pregnancy and may help individuals realise their desire for parenthood, a widely accepted important part of human life. Furthermore, reimbursement of this procedure seems to be an important step towards greater justice and democratizing access, as the decision to freeze eggs should not depend on income. However, emerging data indicates that many women are not returning to use their frozen eggs, giving rise to concerns that freezing eggs for future use is not cost-effective (Ben-Rafael, 2018). Moreover, there are concerns that reimbursement might actually increase injustice if it creates a Matthew effect, whereby access is improved for privileged groups who may already have had the means to access egg freezing. These concerns amongst others have led scholars to claim that reimbursement for egg freezing for non-medical reasons is implausible or extremely unlikely to occur in the near future (Gürtin and Tiemann, 2021). This view was recently echoed in the report of ESHRE (2020) on fertility preservation. The French bioethics law is counter to these previous predictions.
      While the above arguments remain relevant to the public funding debate, central to most funding policies is that the medical/non-medical distinction is used beyond question to demarcate justified from unjustified reimbursement. Egg freezing is not publicly funded in every jurisdiction, however, where it is funded the medical/non-medical distinction is used to determine eligibility for funding, with ‘medical’ egg freezing given priority. Until now, how this distinction is used within policy has not been challenged. France's decision to move away from using this distinction as a criterion is the first instance where, for the purpose of determining eligibility for funding, the reason for egg freezing is irrelevant. This provides reason to consider whether the medical/non-medical distinction is in fact useful in justifying for what reasons access to funding for egg freezing should be prioritised.

      Medical vs. non-medical egg freezing

      Public funding for egg freezing when there is a medical indication for treatment is offered in several countries in varying degrees. For instance, in Belgium since 2017 cancer patients, women with borderline ovarian tumours, and patients with hematopoietic disorders requiring stem cell transplantation, can access public funding for egg freezing (Pennings, 2019). However, women with primary ovarian insufficiency, endometriosis or Turner Syndrome are ineligible for public funding, despite being conditions that many may consider as possessing the features that characterise a ‘medical’ indication for egg freezing. Conversely, in Australia, all the aforementioned reasons are considered as legitimate medical indications for egg freezing, and thus qualify for public funding (Johnston et al., 2021). The variation between how a ‘medical’ indication is interpreted within different funding policies suggests there is no general agreement for or nomenclature of what constitutes a genuine medical indication for egg freezing. Moreover, further issues arise when considering what constitutes as a ‘non-medical’ indication for egg freezing. While there are many reasons that could motivate someone to request non-medical egg freezing, the reason that they need egg freezing is due to age-related fertility decline. Not having a partner does not render someone infertile, rather the onset of menopause does. Therefore, the threat to fertility is age-related fertility decline, and thus the indication for egg freezing is age. While we do not have the space to explore this further, this clarification raises questions such as how we categorise the threat of age if using the medical/non-medical distinction, and more broadly whether aging is a morally justifiable reason for treatment reimbursement.
      Beyond whether a clear distinction can be drawn, is the question of whether the distinction is morally relevant. Historically, the distinction between medical and non-medical egg freezing was formally recognised by the American Society for Reproductive Medicine (ASRM). In 2013, ASRM endorsed medical egg freezing but stated that there was insufficient evidence on safety, efficacy, ethics, emotional risks, and cost-effectiveness to support non-medical egg freezing ( ASRM, 2013, p. 41). Here, it is important to note that the clinical procedure of egg freezing is the same regardless of indication for treatment, so presumably the risks identified by ASRM apply in all instances of egg freezing. With this in mind, in supporting medical but not non-medical egg freezing, ASRM took the stance that medical indications for egg freezing justify taking the aforementioned risks, but non-medical indications do not. This ruling by the ASRM suggests that the reason for seeking egg freezing (medical or non-medical) is a morally relevant factor in determining whether egg freezing is permissible.
      However, six years later, in late 2018, ASRM revised their position, stating that treatment risks are acceptable regardless of indication for egg freezing and that non-medical egg freezing is ethically permissible and serves women's interests in reproductive autonomy (Daar et al., 2018). The ASRM's new position on egg freezing entails that women are permitted to seek egg freezing irrespective of whether it is for medical or non-medical reasons and that it is not only medical indications that justifies risk taking. Thus, the ASRM dissolved the distinction previously defined for the purpose of evaluating in what instances and to whom, the risks of egg freezing were justified. However, despite this, the distinction has been retained within many policies governing access to and funding for egg freezing, worldwide.
      The continued use of medical/non-medical distinction in egg freezing policy is particularly noteworthy since the same distinction is less relevant when considering requests for other ARTs. Many jurisdictions have now adopted a broader understanding of what circumstances or needs indicate that intervention through ARTs is necessary. For example, previously limited to individuals with a ‘medical’ indication of infertility, access to ARTs for singles and same-sex couples is now widely practiced, as it is recognised that these individuals are unable to conceive without medical assistance. With this in mind, it is not clear what the rationale is for continuing to use the medical/non-medical distinction to distinguish between requests for egg freezing. As argued by Goold and Savulescu (2009), the women seeking non-medical egg freezing are analogous to those seeking medical egg freezing. Further, empirical data indicates that there is some public support for funding both medical and non-medical egg freezing (Johnston et al., 2021; Platts et al., 2021), suggesting that for some, the indication for egg freezing is not important to decisions of funding distribution. These challenges to the medical/non-medical distinction warrant further deliberation on the continued use of the distinction in egg freezing policy, including whether this distinction is morally relevant to funding decisions. It is of course necessary to acknowledge that in many nations health budgets are limited, so the decision to ration funding for egg freezing may just be an unavoidable consequence of funding limitations. Nonetheless, if we accept that the presence of funding may influence who can access egg freezing, then we need to ensure that the criteria used to distribute funding are ethically justified.

      The way forward

      It is unknown whether the expansion of funding for egg freezing beyond ‘medical’ reasons will be taken up by other nations more widely. To be clear, we are not suggesting that funding policies should follow the French bioethics law or that this law be a universal exemplar of justice. Rather, we support the early pragmatic conclusion of Mertes and Pennings (2012, p. 12) that policy strategies are often dependent on ‘local legal and contextual factors’. We suggest that the revision of the French bioethics law presents a challenge to the justification of the medical/non-medical distinction as a criterion for allocating public funding and prompts a new round of socio-political and ethical discussion on who should pay for egg freezing.

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