# 2019-239 Medical and Dental Care, Expansion of the Spectrum of Care for Infertility Treatments, In Vitro Fertilization

Case summary

F&R Date: 2020-11-27

The grievor and his spouse sought medical treatment as a result of not being able to successfully conceive a child. The grievor had fertility testing conducted at a provincial lab, which found normal results. He then had testing conducted at a private clinic, which determined sperm morphology below the standard, indicating male factor infertility. Consequently, the grievor and his spouse underwent infertility treatment at the private clinic. The grievor's claim for reimbursement of infertility treatment was denied by the Canadian Armed Forces (CAF) because they accepted the provincial lab results which were normal. The grievor contended that, to determine male factor infertility, the private clinic testing analyzed more parameters than the provincial lab. He also argued that the CAF policy was outdated because serving female members are entitled to reimbursement of in vitro fertilization (IVF) but serving male members have no entitlement to IVF funding, contrary to the notion of equality. As redress, he requested reimbursement of IVF and intracytoplasmic sperm injection (ICSI).

There is no Initial Authority (IA) decision in the matter because the IA determined that the grievance was submitted outside of the prescribed time limits found in Queen's Regulations and Orders for the Canadian Forces 7.06.

The Committee requested additional information from staff at the Director Medical Policy (D Med Pol). Their response indicated that the CAF accepts the results of publicly funded labs, but not those from private labs. They acknowledged that, while test results may differ slightly from province to province, the labs do not make the diagnosis of infertility; a clinician does based on lab results and many other factors.

The Committee found that since the grievor's spouse is a civilian, the CAF has no obligation to reimburse IVF costs, a decision which followed policy in the Spectrum of Care (SoC). The Committee noted that, for the grievor to be eligible for ICSI funding, a diagnosis of male factor infertility was required, in accordance with the SoC. The Committee concluded that the grievor had provided this information, but that the CAF had not comprehensively considered, nor explained to the grievor, why the private lab results were not accepted as showing male factor infertility. The Committee found that, in order to deny reimbursement of ICSI, the CAF must clearly explain why the private lab results do not support a diagnosis of infertility, which did not occur in this case.

Finally, the Committee noted that the CAF did change infertility treatment eligibility requirements in the SoC in February 2019. This included one cycle of IVF for female CAF members under the age of 43, regardless of infertility diagnosis. These changes mirrored that of Ontario's IVF coverage, which is a social program. The Committee concluded that no province or territory in Canada offers infertility treatment as a funded medical service. As a result, the Committee found that the SoC is reasonable because it compares favourably with coverage provided across Canada.

The Committee found that the grievor had been aggrieved. The Committee recommended that the Final Authority direct D Med Pol to conduct a detailed review of the private lab results for the purpose of diagnosis of male factor infertility of the grievor.

FA decision summary

The Director Canadian Forces Grievance Authority, acting as FA, agreed with the Committee's findings and recommendation that the grievor be not afforded redress for the IVF. While it is recognized that, generally speaking, IVF is a fundamental part of a couple's infertility treatment, the SoC clearly states that non-CAF members, including civilian spouses, are not included in IVF coverage. The recent adoption/application of the WHO criteria for male factor infertility results in the grievor now meeting the established criteria. Therefore, he is entitled to reimbursement of direct lab-testing costs incurred in accordance with the CAF SoC. It is worth noting that the CAF has taken steps to adjust its SoC to mirror the IVF coverage in Ontario under the Ontario Fertility Program, a social program, for all serving members in the Regular Force and Reserve Force on Class C and B (greater than 180 days) service. Therefore, since December 2015, the province of Ontario funds one cycle of IVF for any woman under the age of 43, regardless of any infertility diagnosis, and a consultation with a doctor, to ensure that IVF is an appropriate option. As it currently stands, no province or territory in Canada offers infertility treatment as a funded medical Service, and the FA considered the SoC reasonable because it compares favourably with the coverage provided across Canada.