STJ’s decision applies to a cancer patient, but experts say this measure could have repercussions
Gilmara Santos
The health fund must pay for the freezing of eggs of a patient with breast cancer as a precaution against infertility. The unanimous decision of STJ’s Third Committee (High Court of Justice) and is only valid for the analyzed case – a breast cancer patient, 24 years old.
However, according to the experts consulted, the decision may set a precedent for other similar cases.
The understanding of the ministers is that the health plan must cover the expenses Cryopreservation, the name given to the procedure of freezing eggs, until the end of chemotherapy. However, after discharge from the hospital, it is the patient who bears the costs.
“Egg freezing costs, on average, R$20,000; IVF [FIV] It can be up to R$30,000 in Brazil. None of them are funded by medical insurance, since Law No. 9.656 / 1998 [Lei dos Planos de Saúde] It exempts operators and insurance companies from financing treatments of this kind. This decision expands access to the possibility of having biological children for women battling cancer,” explains Alexandra Jaruca, founder of Fertably, a Brazilian fertility-related medical startup.
The court understood that in this case, the Cryopreservation It is part of family planning, which is compulsorily covered by the Health Plan Act.
However, because coverage for assisted reproduction, including IVF and in vitro fertilization, is still not mandatory, the operator will not need to cover the costs of egg freezing at the end of chemotherapy.
Chemotherapy, the treatment a patient undergoes against cancer, can cause infertility. The risk increases with age and other risk factors.
Egg freezing is a medical technique that allows patients to preserve their reproductive capacity for a later time, even after undergoing extreme procedures, such as chemotherapy. Thus, STJ’s decision expands access to the possibility of having biological children for women battling cancer.
“Not only do we celebrate a legal victory, but we also celebrate an important step toward gender equality in health care. The right to maintain reproductive capacity, even in the face of the adversities of cancer treatment, is a powerful affirmation of women’s autonomy and dignity. We know that health is not just about physical recovery, but also the right to plan our lives, our dreams, and our families,” says Alexandra.
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Lawyer Livia Linhares, of Bhering Cabral – BHC Advogados, considers that the decision will have ramifications for all plan users, who will have to bear these costs, and will also affect the increase in jurisdiction.
“The Special Court ruling on Transitional Justice reinforces thinking about the importance of balancing the complementary health system and the risks involved in mandatory coverage for treatments and procedures that are not expected on the list of mandatory coverages. Attorney Aline Gonsalves, from the same office, points out that these are issues that can threaten and directly affect the conditions for access to health services.
Rachel Quintana, a lawyer in the same firm, states that the lack of predictability regarding costs related to coverage will be reflected in the value of the monthly fee, and also affects the loss rate as a factor that must be taken into account, and it is necessary for operators to strategically re-evaluate their operations in order to reduce the impact of the increase impending costs of care.
When contacted, FenaSaúde (the National Federation for Complementary Health) informed, through its press office, that “coverage of egg cryopreservation from women undergoing cancer treatment has not become mandatory for health plans. This week, the Third Panel of the Supreme Court of Justice (STJ) decided to release Coverage for a specific beneficiary, due to a lawsuit against its operator. The decision does not apply to other cases and is not final, subject to appeal.
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