The Berlin-Brandenburg State Social Court has decided: When it comes to fertility treatment, health insurance companies are only allowed to count unsuccessful attempts at the same method. This interpretation of the regulation has far-reaching consequences for affected couples and health insurance companies.
The plaintiff, who turned 40 in August 2019, has been the mother of a daughter since 2010 who was born through intracytoplasmic sperm injection (ICSI). In this procedure, a single sperm is injected directly into the egg using a fine glass needle. The woman then made two further attempts at artificial insemination with ICSI and three attempts with cryopreserved eggs in the pronuclear stage. In this method, eggs are frozen in liquid nitrogen at an early stage of fertilization at minus 196 degrees Celsius. With the exception of an ICSI in 2015, the woman financed all attempts herself. Only one ICSI in 2018 resulted in a pregnancy, which ended in a miscarriage.
Decision of the court
In 2019, the plaintiff tried two ICSI treatments again, which also failed. Her health insurance company refused to cover the costs as required by law because more than three attempts had already been unsuccessful. The lawsuit before the Potsdam Social Court was dismissed. However, the 16th Senate of the State Social Court decided in favor of the woman and ordered the health insurance company to cover half the costs for the two unsuccessful ICSI treatments in 2019.
Reasons for the judgment
According to the law, medical treatment also includes medical measures to promote pregnancy if there is a reasonable prospect of success. Such a prospect no longer exists if the measure has been unsuccessful three times. The Senate clarified that different methods of artificial insemination cannot be combined in the count, which is clear from the wording and purpose of the rule. Therefore, the three attempts with cryopreserved eggs do not count. In addition, only methods listed in the guidelines of the Federal Joint Committee are taken into account. This is not the case with cryopreserved eggs in the pronuclear stage. The ICSI that led to a miscarriage in 2018 also does not count as an unsuccessful attempt. Therefore, only the ICSI from 2015 is considered unsuccessful and the costs of the two ICSI attempts from 2019 must be covered.
Legal situation and outlook
The judgment is not yet final because the Senate has allowed the appeal due to the fundamental importance of the matter. The health insurance company has one month to file an appeal with the Federal Social Court.
LSG Berlin-Brandenburg
