08/02/2012 06:00 pm ET

Wounded Veterans With Some Genital Injuries Denied Benefits Due To 'Legal Issues,' Pentagon Says

WASHINGTON -- Complicated and unresolved legal issues prevent the Pentagon from providing critical benefits to severely wounded troops who want to start families, a senior Defense Department official told The Huffington Post Thursday.

This week the Pentagon unveiled a new policy extending some reproductive health benefits to men and women injured in combat who need assistance in conceiving children. The new policy pays for such services as in vitro fertilization, for example, in cases in which the husband cannot naturally fertilize his wife's eggs with his sperm.

But the new Pentagon policy specifically denies benefits to soldiers and Marines whose genitals have been damaged or destroyed in combat and can no longer produce sperm. That leaves couples like Heather and Mark Litynski, a young Marine who lost both legs, his left arm and his testicles to a blast from an improvised explosive device in Afghanistan, still looking for help.

They had wanted to have children, but the new policy means the Pentagon will not pay for costly in vitro fertilization procedures using donor sperm. In a generally effective system of military health care, "this is one ugly hole," Heather Litynsky told The Huffington Post this week.

That loss of genitals is becoming increasingly common in IED blasts in Afghanistan that can blow off arms and legs and severely damage the lower torso.

As The Huffington Post reported earlier this week, at least 1,875 American troops have suffered genital wounds since 2005, including 51 so far this year. They are among the 34,440 American battle casualties caused by roadside bombs in Iraq and Afghanistan, a grim toll that includes over 3,000 dead and 31,394 wounded through May, according to the most recent Defense Department data.

A decade ago, many of these wounded would have died on the battlefield. But rapid advances in battlefield medicine are saving lives, as detailed in a Huffington Post series last year.

"The problem is that the improvements we've made in health care on the battlefield, by the military, have moved so quickly, the law hasn't been able to keep up," said Warren Lockette, a senior Pentagon health official.

"The lawyers haven't kept up," he observed.

In an interview, Lockette suggested that providing donor sperm to the spouse of an injured trooper likely would clash with the various and constantly evolving state laws that define the ownership of the sperm, the fertilized egg or the resulting child. Such laws vary from state to state, and their application might depend on either where the couple was stationed or the location of their permanent home. In any event, state laws would likely trump Defense Department regulations.

Lockette seemed frustrated at the inability of Pentagon lawyers to extend benefits to wounded warriors who cannot produce sperm. He said the overriding purpose of the military health system is to serve the battle wounded and their families, including those with genital wounds.

But, he said, "We can't get straight answers about a lot of these questions."

A medical doctor with field experience in Afghanistan, Lockette is deputy assistant secretary of defense for clinical and programs policy, and chief medical officer for TRICARE, the military health insurance system. He has served as a senior advisor to the Navy Special Warfare Command and the U.S. Special Operations Command.

Asked directly why the Defense Department can't simply pay for procedures using donor sperm despite state laws, Paul Hutter, general counsel for TRICARE, said, "That exact question that you're asking has never been posed to us for an absolute legal decision."

"This exact question," Hutter said, "would require additional study."

Lockette said the numbers of wounded who become infertile because of their injuries "are not strikingly large." But even if the numbers are relatively small, he said, "These are significantly catastrophic injuries to individuals'' who deserve the best care and support possible.

The Pentagon's health officials struggled for about two years to develop the new policy. During that time, Lockette said, they did hear from politicians and interest groups. But he strenuously denied that the policy was affected by any political or religious pressure.

In any event, the new policy is subject to change, Lockette said. "We all want to do what is in the best interest of the service member and their family, so it's an absolute requirement that we consistently revisit every possible permutation or combination of policy that affects them," he said. "We owe this to them and we will do that."