Swiss Federal Supreme Court dismissed insurer appeal in Geneva; coverage upheld for gender dysphoria fertility preservation

Swiss Federal Supreme Court dismissed insurer appeal in Geneva; coverage upheld for gender dysphoria fertility preservation

Walder Wyss Rechtsanwälte | Decision 9C_438/2024 of 24 June 2026…

2024 of 24 June 2026 (designated for publication)

In its judgment, the Federal Supreme Court (the Court) dismissed the appeal of a health insurer against a judgment of the Cantonal Supreme Court of Geneva ( Cour de justice de la République et canton de Genève ) of 21 June 2024 and confirmed that compulsory health insurance must cover the costs of the extraction and cryopreservation of sperm of a transgender woman undergoing hormone therapy for gender dysphoria. In dispute was whether this service was covered although gender dysphoria is not among the indications listed in Annex 1 to the Ordinance on Healthcare Benefits ( Krankenpflege-Leistungsverordnung , KLV).

The insurer had refused reimbursement on the ground that sperm cryopreservation was a mandatory benefit only in connection with cancer therapy, stem cell transplantation, or cyclophosphamide treatment, as listed under chapter 3 of Annex 1 KLV (“measures to preserve fertility in persons receiving fertility-damaging treatments”). The Cantonal Supreme Court of Geneva upheld the insured person’s appeal and held that the costs were covered by compulsory health insurance.

The Court confirmed this outcome. It first held that sperm cryopreservation in the case of gender dysphoria was not a preventive measure under art. 26 of the Health Insurance Act ( Bundesgesetz über die Krankenversicherung , KVG), which would be reimbursable only if included in the exhaustive positive list of art. 12 KLV. Preventive measures anticipated merely possible adverse effects of an illness, whereas azoospermia was, according to the uncontested medical findings, a direct and certain consequence of the oestrogen treatment administered to transgender patients. The measure therefore constituted a general benefit in the event of illness under art. 25 KVG, azoospermia being a secondary consequence of the treatment of gender dysphoria as the underlying illness.

The Court further held that, for medical services within the meaning of art. 33 para. 1 KVG, Annex 1 KLV was not an exhaustive positive list with constitutive effect, but merely declaratory: the listing of specific indications did not, in itself, exclude coverage for other, unexamined indications. Coverage for an unlisted indication was excluded only in the event of a qualified silence, i.e. where the Federal Department of Home Affairs (FDHA), with the assistance of the Federal Commission for General Services and Principles ( Eidgenössische Kommission für allgemeine Leistungen und Grundsatzfragen, ELGK), had implicitly excluded that indication. As the commission had not been asked to assess fertility preservation measures in relation to gender dysphoria when the relevant listing was introduced in 2019 and 2020, no qualified silence existed.

Consequently, since the insurer did not contest the assessment of effectiveness, appropriateness, and cost-effectiveness relating to the collection and cryopreservation of sperm in cases of gender dysphoria carried out by the Cantonal Supreme Court of Geneva, the Court decided that there is no reason to deviate from the outcome of that assessment.

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