Does Subsidizing Ivf Decrease Adoption Rates and Should It Matter? I
Total Page：16
File Type：pdf, Size：1020Kb
University of Minnesota Law School Scholarship Repository Minnesota Law Review 2010 Trading-Off Reproductive Technology and Adoption: Does Subsidizing Ivf Decrease Adoption Rates and Should It Matter? I. Glenn Cohen Daniel L. Chen Follow this and additional works at: https://scholarship.law.umn.edu/mlr Part of the Law Commons Recommended Citation Cohen, I. Glenn and Chen, Daniel L., "Trading-Off Reproductive Technology and Adoption: Does Subsidizing Ivf Decrease Adoption Rates and Should It Matter?" (2010). Minnesota Law Review. 438. https://scholarship.law.umn.edu/mlr/438 This Article is brought to you for free and open access by the University of Minnesota Law School. It has been accepted for inclusion in Minnesota Law Review collection by an authorized administrator of the Scholarship Repository. For more information, please contact [email protected]. Article Trading-Off Reproductive Technology and Adoption: Does Subsidizing IVF Decrease Adoption Rates and Should It Matter? I. Glenn Cohen† and Daniel L. Chen†† Introduction ............................................................................. 486 I. Background on Reproductive Technologies and Adoption ............................................................................. 489 A. Infertility and IVF in the United States .................... 489 B. Adoption in the United States .................................... 493 II. The Policy Debate Over State-Level Insurance Mandates Covering IVF: Do States Have an Obligation to Improve Access to Reproductive Technologies Even If It Decreases Adoptions? ................................................. 500 A. The Prima Facie Case for Improving Access to Reproductive Technologies .......................................... 500 B. Arguments Against Expanding Access to Reproductive Technologies Through Mandates ......... 505 † Assistant Professor, Harvard Law School; Co-Director, Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics; J.D., Harvard Law School. [email protected]. Thanks to David Abrams, Bruce Ack- erman, Libby Adler, Anne Alstott, Elizabeth Bartholet, Naomi Cahn, Richard Chen, Travis Coan, Travis St. Clair, Judith Daar, Einer Elhauge, Nir Eyal, Michael Frakes, Stavros Gadinis, Michele Goodwin, Bert Huang, Joan Hollin- ger, Kim Krawiec, Katerina Linos, Anup Malani, Solangel Maldonado, Kather- ine Pratt, Mark Ramseyer, Chris Robertson, John Robertson, Susannah Rose, Jasmin Sethi, Susan Smith, Matthew Stephenson, Jeannie Suk, and Susan Yeh for comments. We also thank participants at the 2009 Empirical Legal Studies Conference, the 2010 Wells Adoption Conference, the 2010 Program on Ethics and Health Workshop at Harvard University, the 2010 Law and So- ciety Conference, and the 2010 Yale-Stanford Junior Faculty Forum where this work was presented. Erica Kraus, Da Lin, Rebecca Livengood, Lauren Seffel, and Devin Sullivan provided invaluable research assistance. Travis Coan provided invaluable statistical assistance with the international data-set. This work was made possible thanks to funding from the Petrie-Flom Center. †† Assistant Professor, Duke Law School; Ph.D, MIT; J.D., Harvard Law School. Copyright © 2010 by I. Glenn Cohen and Daniel L. Chen. 485 486 MINNESOTA LAW REVIEW [95:485 C. The Substitution Theory and Its Normative Assumptions ................................................................ 509 D. Domestic Versus International Adoptions ................. 526 III. The Empirical Question: Is the Introduction of IVF Insurance Mandates Associated with Decreases in Adoption? ........................................................................... 533 A. The Intuitive Appeal of the Substitution Theory ....... 534 B. Study Design ................................................................ 536 1. Division of State Mandates ................................... 537 2. Data Description: IVF Utilization and Adoption . ................................................................ 540 3. Empirical Strategy ................................................ 546 C. Results and Interpretation .......................................... 550 1. IVF Utilization ....................................................... 551 2. Adoption ................................................................. 551 3. IVF Utilization and Adoption ............................... 554 4. Robustness Checks ................................................ 555 5. Limitations ............................................................ 568 Conclusion ................................................................................ 574 INTRODUCTION For those who have difficulty conceiving through natural reproduction, using assisted reproductive technology to have genetically related children is a very expensive proposition. In particular, the average cost per cycle of in vitro fertilization (IVF) in the United States is $12,400,1 and it has been esti- mated that actually producing a live birth through IVF would cost an individual (on average) between $66,667 and $114,286.2 No more than a fifth of employer-sponsored insurance plans cover IVF,3 so in the absence of state intervention most indi- viduals would be forced to cover these high costs out of pocket. For many people, therefore, economic realities place this tech- nology out of reach. Given these high costs, should states take steps to improve access to reproductive technologies for those who have difficulty conceiving through natural reproduction? Should they do so 1. DEBORAH SPAR, THE BABY BUSINESS 213 tbl.7-2 (2006). 2. Id. (citing Peter Neumann et al., The Cost of a Successful Delivery with In Vitro Fertilization, 331 NEW ENG. J. MED. 239, 239–43 (1994)). 3. Janet L. Dolgin, The Evolution of the “Patient”: Shifts in Attitudes About Consent, Genetic Information, and Commercialization in Health Care, 34 HOFSTRA L. REV. 137, 175 n.216 (2005). 2010] IVF AND ADOPTION 487 even if the intervention decreases adoptions domestically or in- ternationally? A number of states have attempted to improve access to IVF through their regulatory powers over insurance, making IVF a mandated benefit such that health insurers are required to cover IVF in their plans, thus cross-subsidizing the costs across all insured individuals in the state. These states have apparently done so without concern over the possible ef- fects on adoption. While most scholars have also unabashedly favored these mandates and their expansion, a few have ex- pressed concerns about the mandates’ effects on adoption and have assumed (intuitively enough) that making IVF more wide- ly available will diminish adoptions; that is, they have assumed that there is a tradeoff between helping individuals conceive and helping children waiting to be adopted. We call this the “substitution theory.” To help understand whether possible effects on adoption provide valid reasons to oppose these mandates, this Article of- fers the first empirical and normative examination of the sub- stitution theory. It proceeds as follows. Part I provides brief background on adoption and reproductive technology usage in contemporary America. Part II turns to the normative question of whether states ought to improve access to reproductive technologies, and describes the main mechanism that some states have used to do so—state-level insurance mandates. We first establish why a number of different moral theories offer a prima facie case for the state to improve access to these technologies. We then briefly discuss a number of objections (economic, religious, safety, etc.) to the mandates before setting out the particular concern that is our focus: the objection that improving repro- ductive technology access through state-level insurance man- dates leads to a diminution in adoptions. That claim has both an empirical premise, that this effect actually occurs, and a normative premise, that the effect is a good reason to oppose these mandates. The remainder of Part II clarifies this argu- ment and challenges some of its normative assumptions. In Part III, we shift focus to examine the empirical premise behind the substitution theory—that the introduction of these mandates is associated with a diminution in adoptions— through an econometric analysis. We set out our study design including descriptions of the state-level mandates, the CDC da- ta-set we use to measure IVF utilization, and the multiple da- 488 MINNESOTA LAW REVIEW [95:485 ta-sets we use to measure domestic (public and private) and in- ternational adoptions by U.S. citizens by state. We take advan- tage of state-level variation in whether a state has an insur- ance mandate, when the mandate was introduced, and what the mandate requires (complete coverage, partial coverage, a mandate to “offer,” or a mandate that excludes IVF) to fashion a three-part empirical strategy. First, we use a differences-in- differences methodology to examine the effect of the introduc- tion of these mandates on IVF utilization. Second, we use the same methodology to study the effect of these mandates on adoption. Finally, we conduct ordinary least squares and two- stage least squares analyses to study the effect of IVF utiliza- tion directly on adoption rates, which we interpret as causal, assuming that the introduction of these mandates are exogen- ous to adoption rates. We then present our results and interpret them. This Part includes a discussion of several robustness checks, limitations of our study, and implications for the policy question. We do not find strong evidence that increased