Online BibliographiesBibliographies on this Web site were prepared for educational purposes by law students as part of Nancy P. Johnson's Advanced Legal Research course. The Law Library does not guarantee the accuracy, completeness, or usefulness of any information provided. Thorough legal research requires a researcher to update materials from date of publication; please note the semester and year the bibliography was prepared. |
For persons struggling to conceive a child, the disappointment of learning they are infertile will likely be followed by the discovery that their health insurance plan does not cover expenses of the procedures that may enable them to conceive. Infertility is widespread, affecting approximately 6.1 million people or 10% of persons of reproductive age. While assisted reproductive technologies can increasingly enable conception, healthcare insurers have historically declined to provide coverage for infertility treatment.
Where infertility treatment is not expressly excluded from coverage in the insurance policy, beneficiaries have faced the following arguments by insurers against coverage under the contract: Infertility is not an "illness" within the meaning of the contract; the requested procedure is not a "treatment" because it does not resolve the underlying medical problem or is not "medically necessary" as required by the contract; and that treatment is "experimental." Given that courts generally construe ambiguities in insurance contracts in the light most favorable to the insured, beneficiaries have had success in arguing that coverage is provided. Insurers have responded by expressly excluding coverage for infertility treatment.
Where contract claims have failed or are unavailable, infertile individuals have argued, without much success, that an employer's or an insurer's failure to provide insurance coverage for infertility treatment constitutes discrimination in violation of the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964, and the Pregnancy Discrimination Act (PDA). Commentators have also suggested that constitutional issues are raised by the fact that Medicaid mandates coverage of Viagra, while excluding coverage for fertility drugs.
State legislatures have responded. Fifteen states now mandate that insurers either cover infertility treatment or offer coverage for such at a premium to the insured. Many other states, including Georgia, have legislation pending on this issue. Still, state mandates may be insufficient because the statutes vary widely in the types of insurance contracts that they regulate and the coverage that is required and because ERISA preempts state regulation of self-insured plans. Although insurance is traditionally regulated by the states, federal legislation is currently pending that would uniformly mandate that health insurance offer coverage for infertility treatment.
This website focuses on the avenues through which infertile individuals may seek to demand insurance coverage for infertility treatments:
(1) Breach of contract claims against the insurer for failure to provide benefits under the contract;
(2) Violations of anti-discrimination statutes based on the exclusion of infertility treatment coverage from an insurance plan; and
(3) Availability of legislation mandating coverage by insurers for infertility treatment.
Concerns of insurers regarding the effects of statutory mandates on insurance are addressed, as well.
At the time of this writing, Debra K. Haverstick is a second-year law student at Georgia State University College of Law. She conducted this research project and created this website in the Fall of 2003 for the Advanced Legal Research Seminar taught by Professor Nancy Johnson.
Go to FindLaw (http://www.findlaw.com) to retrieve the following cases free of charge. They may also be accessed for a fee through Lexis (http://www.lexis.com), WestLaw (http://www.westlaw.com), and LoisLaw (http://www.loislaw.com). Note: When searching for additional cases, useful search terms include: insurance, infertility, fertility, in vitro fertilization, artificial insemination.
Bragdon v. Abbott, 524 U.S. 624, 638 (1998).
In holding that a dentist, who refused to treat a patient with HIV, violated the Americans with Disabilities Act, the Court found that reproduction is a “major life activity” within the meaning of the ADA. The case opens the door for infertile couples to argue that inequality of insurance coverage violates the ADA.Skinner v. Oklahoma, 316 U.S. 535 (1942).
Where convicted criminal was ordered to be sterilized pursuant to an Oklahoma statute, the U.S. Supreme Court, declares procreation to be “…fundamental to the very existence and survival of the race” and a “basic liberty.”Saks v. Franklin Covey Co., 316 F.3d 337 (2d Cir. 2003).
Plaintiff’s insurance plan specifically excluded coverage of artificial insemination and IVF. The court found that the employer’s failure to cover infertility treatments did not violate the ADA, Title VII of the Civil Rights Act of 1964, or the Pregnancy Discrimination Act. The court found that discrimination on the basis of infertility is not protected by the PDA, which protects only pregnancy-related conditions unique to women, because both men and women suffer infertility. Likewise, the court found no violation on the basis of sex because the employer offered the same coverage to employees of both genders.Krauel v. Iowa Methodist Medical Center, 95 F.3d 674 (8th Cir. 1996).
Where plaintiff’s employer-provided healthcare plan excluded treatment for infertility, the court affirmed summary judgment for the employer on plaintiff’s claims based on alleged violations of the ADA, PDA and Title VII. With regard to the ADA claim, the court found that plaintiff’s infertility did not substantially limit a major life activity.Egert v Connecticut General Life Ins. Co., 900 F.2d 1032 (7th Cir. 1990).
The insurance company refused to reimburse for in vitro fertilization (IVF) on grounds that the procedure was not "essential for the necessary care and treatment of an injury or a sickness," as required by the plan, because it would not “cure” the patient’s impaired fallopian tube. The court determined that the insurance company’s denial of claims was arbitrary and capricious, in light of internal company guidelines which described infertility as an illness.Reilly v Blue Cross & Blue Shield United of Wis., 846 F.2d 416 (7th Cir. 1988).
The insurance company refused to cover expenses of plaintiff’s IVF, arguing that it was “experimental” because the procedure had a success ratio of less than 50%. The court reversed summary judgment for the insurance company, finding disputed material issues of fact concerning the basis of the insurance company’s decision and whether the refusal was arbitrary and capricious. “Not only may the decision to grant or deny coverage based solely on a success ratio per se be arbitrary and capricious, but the particular ratio selected, in this case, for IVF, may well be arbitrary and capricious.” Id. at 423-424.Laporta v. Wal-Mart Stores, Inc., 163 F. Supp. 2d 758 (W.D. Mich. 2001).
Where plaintiff alleged that her termination violated the ADA, the court denied summary judgment for the employer, finding that plaintiff’s infertility substantially limited her in the major life activity of reproduction, and thus she was able to state a claim under the ADA. However, the court granted summary judgment to the employer with regard to the plaintiff’s PDA claim, finding that discrimination on the basis of infertility is not prohibited by the PDA.Pacourek v. Inland Steel Co., 916 F. Supp. 797 (N.D. Ill. 1996).
Plaintiff was terminated by employer when her infertility treatments required her to be absent from work on several occasions. The court found that infertility is a physical impairment that substantially limits the major life activity of reproduction; therefore plaintiff was disabled within the meaning of the ADA. Summary judgment for employer on plaintiff’s ADA claim was denied.Reuss v. Time Ins. Co., 340 S.E.2d 625 (Ga. App. 1986).
Insurer was not required to pay for reversal of vasovasectomy, a sterilization procedure undertaken by plaintiff voluntarily and not compelled by illness or injury. The court upheld summary judgment for insurance company because reversal of vasovasectomy was not attributable to “injury or sickness.”Witcraft v. Sundstrand Health & Disability Group Ben. Plan, 420 N.W.2d 785 (Iowa 1988).
The Iowa Supreme Court rejected the insurance company’s argument that the patient’s infertility, characterized as the condition of nonpregnancy, was not an “illness.” The controversy focused on the interpretation of “illness” in the health care plan. The court concluded that improper functioning of the reproductive organs constituted an illness; therefore, expenses for artificial insemination were covered. The case includes a discussion of the rules of construction with regard to insurance policies, including that ambiguities are construed in the light most favorable to the insured.Marsh v. Reserve Life Ins. Co., 516 So. 2d 1311 (La. App. 1987).
Summary judgment was appropriate for insurer on grounds that reversal of wife’s sterilization was elective and not covered under the terms of plaintiff’s insurance policy.Northrup v. Blue Cross & Blue Shield of Utica-Watertown, Inc., 652 N.Y.S.2d 902 (N.Y. App. Div. 1997).
The court held that Gamete Interfallopian Transfer (GIFT) was not included within insurance policy provision excluding coverage of “artificial insemination.” Artificial insemination does not involve surgery, whereas GIFT does. If the insurer had intended not to cover the GIFT procedure, it could have said so expressly in the contract.Kinzie v Physician's Liability Ins. Co., 750 P.2d 1140 (Okla. Civ. App. 1987).
The court held that IVF was not “medically necessary” as required by plaintiff’s insurance policy. “The conception of a child, although certainly important to married couples who have a problem conceiving, was not ‘medically necessary’ to the physical health of the insured.” Id. at 1142.Connecticut General Life Ins. Co. v Shelton, 611 S.W.2d 928 (Tex. Civ. App. 1981).
The court held that the reversal of voluntary tubal ligation was not covered under plaintiff’s insurance policy because the procedure was not necessary treatment for an injury or sickness, as required by plaintiff’s policy.
Go to FindLaw (http://www.findlaw.com) to retrieve the following statutes free of charge. They may also be accessed for a fee through Lexis (http://www.lexis.com), WestLaw (http://www.westlaw.com), and LoisLaw (http://www.loislaw.com). Note: When searching for additional statutes, useful search terms include: insurance, infertility, fertility, in vitro fertilization, artificial insemination.
McCarran-Ferguson Act, 15 U.S.C. §§ 1011-15, 1012 (2003).
"No Act of Congress shall be construed to invalidate, impair, or supersede any law enacted by any State for the purpose of regulating the business of insurance . . . ." 15 U.S.C. § 1012. The statute makes an exception for any Act which "specifically relates to the business of insurance." See below John F. Wagner, Jr., Annotation, Supreme Court’s Views as to Validity, Construction, and Application of McCarran-Ferguson Act (15 U.S.C. §§ 1011-1015), Concerning Regulation of Business of Insurance by State or Federal Law, 125 L. Ed. 2d 879 (2003).
Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001, et seq. (2003).
The ERISA preemption statute excludes from preemption state regulation of insurance, except in the case of self-insured plans. See 29 U.S.C. § 1144. Thus, state statutes mandating insurance coverage for infertility treatments do not regulate insurance plans that are preempted by ERISA. It has been argued that this indicates a need for federal statutes mandating such coverage. See below Aaron C. McKee, The American Dream – 2.5 Kids and a White Picket Fence: The Need for Federal Legislative to Protect the Insurance Rights of Infertile Couples, 41 Washburn L.J. 191 (Fall 2001). But see H.R. 3014, 108th Cong. (2003).
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (2003).
Title VII declares it unlawful for an employer to "fail or refuse to hire or to discharge any individual, or othewise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C.§ 2000e-2. Plaintiffs have alleged gender-based discrimination in violation of Title VII based on an employer's failure to offer insurance coverage for infertility treatments. See above Krauel v. Iowa Methodist Medical Center, 95 F.3d 674 (8th Cir. 1996) and Saks v. Franklin Covey Co., 316 F.3d 337 (2d Cir. 2003).
Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k) (2003).
The PDA amends Title VII by explicitly defining the terms "because of sex" or "on the basis of sex" to include "because of or on the basis of pregnancy, childbirth, or related medical conditions." Plaintiffs have alleged violations of the PDA, in conjunction with violations of Title VII, based on an employer's failure to offer insurance coverage for infertility treatments. See above Krauel v. Iowa Methodist Medical Center, 95 F.3d 674 (8th Cir. 1996) and Saks v. Franklin Covey Co., 316 F.3d 337 (2d Cir. 2003).
Americans with Disabilities Act, 42 U.S.C. § 12112(a) (2003).
The ADA prohibits certain employers ("covered entities") from discriminating against "a qualified individual with a disability" because of the disability with respect to compensation and other conditions of employment. In the context of demanding insurance coverage for infertility treatments, plaintiffs have alleged violations of the ADA based on the failure to offer coverage for certain procedures, arguing that infertility is a disability. See Saks v. Franklin Covey Co., 316 F.3d 337 (2d Cir. 2003) and Pacourek v. Inland Steel Co., 916 F. Supp. 797 (N.D. Ill. 1996) above.
Arkansas
Arkansas mandates coverage for expenses of in vitro fertilization. ARK. CODE ANN. § 23-85-137 (Michie 2003). See also ARK. CODE ANN. § 23-86-118 (Michie 2003).
California
California mandates that certain group health care service plan contracts “shall offer coverage for the treatment of infertility, except in vitro fertilization….” CAL. HEALTH & SAFETY CODE § 1374.55 (Deering 2003) See also CAL. INS. CODE § 10119.6 (Deering 2003).Connecticut
Connecticut requires insurance companies providing group healthcare coverage to offer “coverage for the medically necessary expenses of the diagnosis and treatment of infertility, including in-vitro fertilization procedures.” CONN. GEN. STAT. § 38a-536 (2003).Hawaii
Hawaii mandates that, if a health insurance policy offers coverage for pregnancy-related expenses, it shall also cover a one-time benefit for in vitro fertilization with certain limitations, including that the insured or insured’s spouse has at least a five-year history of infertility and that only certain sources of infertility qualify. HAW. REV. STAT. § 431:10A-116.5 (2003).
Illinois
Under the Illinois statute, group health insurance policies (insuring 25 or more employees) must offer coverage for infertility diagnosis and treatment. Coverage must include expenses for in vitro fertilization but only if certain less expensive alternatives have been attempted and have failed. 215 ILL. COMP. STAT. 5/356m (2000).Louisiana
Louisiana prohibits exclusion of coverage of "correctible medical conditions on the basis of infertility." The statute does not otherwise require coverage for treatment of infertility. LA. REV. STAT. ANN. § 22:215.23 (West 2003).Maryland
Maryland mandates that health insurance policies for both individuals and groups, and HMOs that provide pregnancy-related benefits, must cover expenses for in vitro fertilization. Patient must have a two-year history of infertility which is associated with certain medical conditions, with lifetime benefit not to exceed $100,000. MD. CODE ANN., INS. § 15-810 (2002).Massachusetts
Massachusetts requires that certain health insurance policy that provide pregnancy-related benefits must also provide coverage for “medically necessary expenses of diagnosis and treatment of infertility.” MASS. GEN. LAWS ch. 175, § 47H (2003). See also MASS. GEN. LAWS ch. 178A, § 8K; 176B, § 4J; 176G, § 4 (2003).Montana
Montana requires HMOs to cover infertility treatment, with limitations. See the definition of “basic health care services” as including “infertility services.” MONT. CODE ANN. § 33-31-102 (2002). However, other healthcare insurance providers are not required to include coverage for artificial insemination or other infertility treatments. MONT.CODE ANN.§ 33-22-1521 (2002).New Jersey
Under the New Jersey statute, group health insurance plans, covering 50 or more employees and providing pregnancy-related benefits, must provide coverage for infertility treatment. N.J. STAT. § 17B:27-46.1x (2003). See also N.J. STAT. §§ 17:48-6x, 26:2J-4.23 (2003).New York
New York mandates, under certain circumstances, that health insurance plans include coverage for surgical and pharmaceutical treatments for infertility, but it does not require coverage for in vitro fertilization and reversal of elective sterilization, among other limitations. N.Y. INS. LAW § 3221 (Consol. 2003). See also N.Y. INS. LAW § 4303 (Consol. 2003).
Ohio
Ohio requires certain health care insurance corporations to offer coverage of infertility services that are “preventative health care services,” when medically necessary. OHIO REV. CODE ANN. § 1751.01 (Anderson 2003).Rhode Island
Rhode Island mandates that health insurance contracts that provide pregnancy-related benefits must cover expenses for infertility diagnosis and treatment. R.I. GEN. LAWS § 27-18-30 (2002). See also R.I. GEN. LAWS §§ 27-19-23, 27-20-20, 27-41-33 (2002).Texas
Texas requires that, if group health insurance plan provides pregnancy-related benefits, it must include coverage for in vitro fertilization. Coverage is only required if the patient has a five-year history of infertility arising from certain medical conditions. TEX. INS. CODE ANN. § 3.51-6 (2003).West Virginia
West Virginia requires HMOs to offer coverage of infertility services as “preventative services.” W. VA. CODE § 33-25A-2 (2003).
To search for legislation pending in the United States Congress, go to Thomas (http://thomas.loc.gov). To search for legislation pending in state legislatures, go to http://www.ncsl.org/public/state_leg.htm. Note: When searching for additional legislation, useful search terms include: insurance, infertility, fertility, in vitro fertilization, artificial insemination.
Medicare Infertility Coverage Act of 2003, H.R. 969, 108th Cong. (2003).
This Act would, by amending Title XVIII of the Social Security Act, require coverage under Medicare for treatment of infertility.
Equity in Fertility Coverage Act of 2003, H. R. 1852, 108th Cong. (2003).
This Act would require that group health insurance plans that offer coverage for Viagra and other impotency medications must also cover expenses for fertility treatments. It would amend ERISA, the Public Health Service Act, and Federal law provisions that require the Federal government employee benefits plans to provide coverage for impotency medications, by requiring coverage for fertility treatment, as well.
Family Building Act of 2003, H.R. 3014, 108th Cong. (2003).
The Act would establish a federal mandate that group health insurance plans provide coverage for infertility treatment, including "ovulation induction, artificial insemination, in vitro fertilization (IVF), gamete intrafallopian transfer (GIFT), zygote intrafallopian transfer (ZIFT), intracytoplasmic sperm injection (ICSI), and any other treatment provided it has been deemed as `non-experimental' by the Secretary of Health and Human Services ...." The Act would amend ERISA to require coverage for infertility treatment.
H.R. 3026, 108th Cong. (2003).
The Act would require that certain health insurance plans provided to government employees must provide coverage for treatment of infertility. The Act is entitled: "To amend chapter 89 of title 5, United States Code, and chapter 55 of title 10, United States Code, to provide that any health benefits plan which provides obstetrical benefits shall be required also to provide coverage for the diagnosis and treatment of infertility."
H.B. 1012, 147th Gen. Assem., Reg. Sess. (Ga. 2003).
This bill would amend O.C.G.A. § 33-30-1 to require group accident and sickness insurance policies to provide coverage for infertility diagnosis and treatment, including in vitro fertilization.
For the text and status of H.B. 1012, go to the following website and type in the bill number: http://www.legis.state.ga.us/legis/2003_04/leg/legislation.htm.
The Code of Federal Regulations can be accessed for free on the web at http://www.gpoaccess.gov/cfr/index.html.
29 C.F.R. § 1630.2(h)(1) (1993).
The Equal Employment Opportunity Commission guidelines define "physical or mental" impairment within the meaning of the Americans with Disabilities Act to include "[a]ny physiological disorder, or condition" affecting the reproductive system.
Please note that the author has limited the sources listed below to those available in the Georgia State University Law Library or on the internet.
A. LEGAL ENCYCLOPEDIAS
The following references are available at the Georgia State University Law Library and on Lexis (http://www.lexis.com) and WestLaw (http://www.westlaw.com).
43 AM. JUR. 2D Insurance § 547 (2003).
This cite provides a very general discussion of how health insurance works, including common understanding of contract terms in insurance policies. It does not address coverage for infertility treatments, but it is a useful tool capable of aiding in understanding the arguments that both insureds and insurers make in court regarding whether treatment is covered under the terms of the contract.
Call Number: KF154 .A85 1962
43 AM. JUR. 2D Insurance § 554 (2003).
This reference discusses generally provisions in insurance contracts that relate to organs or diseases that are not common to both sexes.
Call Number: KF154 .A85 1962
B. ANNOTATIONS
The following annotations can be accessed through Lexis (http://www.lexis.com) or WestLaw (http://www.westlaw.com) for a fee. For access to the print version via the Georgia State University Law Library, call numbers are provided, as well, if available. Note: When searching for additional annotations, useful search terms include: insurance, infertility, fertility, in vitro fertilization, artificial insemination.
John A. Bourdeau, Annotation, Experimental Procedures, Propriety of Denial of Medical or Hospital Benefits for Investigative, Educational, or Experimental Medical Procedures Pursuant to Exclusion Contained in ERISA–Governed Health Plan, 122 A.L.R. Fed 1 (2002).
This annotation explores cases involving the denial of insurance coverage for experimental treatments in the context of ERISA-governed health plans.
Call Number: KF132 .A524
Edward L. Raymond, Jr., Annotation, Coverage of Artificial Insemination Procedures or Other Infertility Treatments by Health, Sickness, or Hospitalization Insurance, 80 A.L.R.4th 1059 (2001).
This is an excellent starting place for researching judicial interpretations of health care insurance policies, but the author does not address statutes mandating insurance coverage for infertility treatment. The author observes that, "[w]hether artificial insemination procedures or other infertility treatments are covered by health insurance appears to be dependent on three factors: the language of the insurance policy, the cause of the insured’s infertility, and the nature of the treatment performed.” Id. at 1059.
Call Number: KF132 .A522 4th ser.
John F. Wagner, Jr., Annotation, Supreme Court’s Views as to Validity, Construction, and Application of McCarran-Ferguson Act (15 U.S.C. §§ 1011-1015), Concerning Regulation of Business of Insurance by State or Federal Law, 125 L. Ed. 2d 879 (2003).
This annotation explores the boundaries of the McCarran-Ferguson Act, which reserves regulation of insurance to the states, as determined by the U.S. Supreme Court, including the issue of ERISA preemption.
Michael J. Yaworsky, Annotation, Rights and Obligations Resulting From Human Artificial Insemination, 83 A.L.R.4th 295 (2003).
This annotation discusses a variety of non-insurance-related issues that arise in the context of artificial insemination with respect to legitimacy, parental rights, and similar issues.
Call Number: KF132 .A522 4th ser.
C. LAW REVIEW ARTICLES
Law review articles can be retrieved for a fee, searching by citation or topic, on Lexis (http://www.lexis.com) or WestLaw (http://www.westlaw.com). For free access to law review articles on the internet, go to FindLaw at http://stu.findlaw.com/journals/. Note: When searching for additional law review articles, useful search terms include: insurance, infertility, fertility, in vitro fertilization, artificial insemination. For access to these articles in print form, Georgia State University Law Library call numbers are also provided.
Cintra D. Bentley, A Pregnant Pause: Are Women who Undergo Fertility Treatment to Achieve Pregnancy Within the Scope of Title VII’s Pregnancy Discrimination Act?, 73 CHI.-KENT L. REV. 391 (1998).
The author explores whether recognition of a female fertility patient's cause of action for pregnancy-based discrimination under Title VII is consistent with Congressional intent as expressed in PDA and determines that it is. The article does not focus specifically on health insurance coverage for infertility treatment, but it is still useful in discussing whether discrimination based on infertility is impermissible under Title VII.
Call Number: .C54 .K46 (microform)
William C. Cole, Infertility: A Survey of the Law and Analysis of the Need for Legislation Mandating Insurance Coverage, 27 SAN DIEGO L. REV. 715, 716-17 (1990).
Surveys the law regarding insurance coverage of infertility treatment and argues that insurance companies should be required, at minimum, to offer coverage for infertility treatment as an option.
Call Number: .S26 .D43 .L38
Erin Lynn Connolly, Constitutional Issues Raised by States’ Exclusion of Fertility Drugs from Medicaid Coverage in Light of Mandated Coverage of Viagra, 54 VAND. L. REV. 451 (2001).
The article discusses the Health Care Financing Administration's mandate that state Medicaid include coverage for Viagra, in light of the fact that few Medicaid programs cover fertility drugs, and explores issues raised with respect to discusses issues of inequality of treatment in violation of the Equal Protection Clause.
Call Number: .V257 .L415
Lisa M. Kerr, Can Money Buy Happiness? An Examination of the Coverage of Infertility Services under HMO Contracts, 49 CASE W. RES. L. REV. 599 (1999).
This article offers a great analysis of the case law and the typical arguments for, and against, coverage of infertility treatments, based on contract interpretation. Kerr posits that the rise in HMOs, with their cost-containment systems, will likely not include coverage for infertility treatment. She suggests the best means to ensure coverage is to urge HMOs and employers to offer coverage voluntarily.
Call Number: .W47 .R47 L38 (microform)
James B. Roche, After Bragdon v. Abbott: Why Legislation is Still Needed to Mandate Infertility Insurance, 11 B.U. PUB. INT. L.J. 215 (2002).
The author explores arguments for and against federal mandates requiring health insurance coverage of infertility treatments, concluding that the arguments in favor of federal mandates are the more persuasive. The article provides an excellent discussion of arguments that insurers typically make in arguing that infertility treatment is not covered under the terms of the insurance contract.
Call Number: .B747 .U583 .P88
Kimberly Horvath, Does Bragdon v. Abbott Provide the Missing Link for Infertile Couples Seeking Protection Under the ADA?, 2 DEPAUL J. HEALTH CARE L. 819 (1999).
The author posits that Bragdon v. Abbott, in which the Supreme Court found that reproduction is a major life activity within the meaning of the ADA, may open the door for the requirement that employers provide insurance coverage for infertility treatment.
Call Number: .D47 .J68 .H43
Aaron C. McKee, The American Dream – 2.5 Kids and a White Picket Fence: The Need for Federal Legislative to Protect the Insurance Rights of Infertile Couples, 41 WASHBURN L.J. 191 (Fall 2001).
The author argues that federal legislation is needed to protect rights of infertile couples to insurance coverage for infertility treatment. The article is useful in that it includes a brief explanation of the available procedures for treating infertility, known as assisted reproductive technologies (ART). Further, McKee compares the actual estimated cost of infertility treatment with the perceived costs, which tend to be much higher. He argues that, while state legislation in some cases mandates coverage, state laws vary and do not reach plans governed by ERISA; therefore, federal legislation is needed.
Call Number: .W32 .L38
Rhonda S. Tischler, Note: Infertility: A Forgotten Disability, 41 WAYNE L. REV. 249 (1994).
This note is directly on point: it focuses on health insurance coverage of infertility coverage. It discusses whether infertility is a disability within the meaning of the ADA. The limitation of this article is that it was written before several key cases in this area were decided.
Call Number: .W359 .L4162
D. JOURNAL AND NEWSLETTER ARTICLES
The following publications are available through the Georgia State University Law Library Electronic Resources (E-Resources). For access via the law library computer terminals: Go to GIL (http://gil.gsu.edu/) and enter the name of the publication. Direct links are also provided below for each article. If the journal or newsletter is available in the law library in print form, the call number is provided below, as well. Note: When searching for additional articles on GIL, useful search terms include: insurance, infertility, fertility, in vitro fertilization, artificial insemination.
Abbott, Randall K., Coverage of Assisted Reproductive Benefits under Employer Health Plans, JOURNAL OF COMPENSATION AND BENEFITS, Vol. 17 Issue 2, Mar. 2001, at 48.
Call Number: .J86 .C738 .A64
Or go to http://search.epnet.com/direct.asp?an=4374970&db=buh.This article discusses inclusion of coverage for infertility treatments in employer provided health care insurance plans.
Fine of $60,000, Mandate of $814,000 Restitution by Health Net, Announced by Bakke, INSURANCE ADVOCATE, Vol. 114 Issue 5, Feb. 3, 2003, at 24.
This article discusses a fine and order of restitution for an insurance plan that failed to comply with a New Jersey statute mandating infertility coverage.
Bonny Gilbert, Infertility and the ADA: Health Insurance Coverage for Infertility Treatment, 63 DEF. COUNS. J. 42 (1996).
The author argues that infertility should be recognized as a disability within the meaning of the ADA and should be covered by employer provided healthcare insurance.
Call Number: .D43 .C68 .J68
Henry, Ed, Covering the Cost of Fighting Infertility, KIPLINGER'S PERSONAL FINANCE MAGAZINE, Vol. 53 Issue 8, Aug. 1999, at 52.
This article discusses a case in which the Equal Employment Opportunity Commission found a violation of the ADA based on an employer's failure to provide insurance coverage for infertility treatment.
Jesitus, John, Conceiving Infertility Benefits, MANAGED HEALTHCARE, Vol. 10 Issue 11, Nov. 2000, at 14.
This article discusses potential problems facing the health care insurance industry as a result of mandatory inclusion of coverage for infertility treatment.
J. Gregory Lahr, What is the Method to Their “Madness”? Experimental Treatment Exclusions in Health Insurance Policies, 13 J. CONTEMP. HEALTH L. & POL’Y 613 (1997).
This article focuses on health insurance exclusion of coverage for experimental treatments. Although the author focuses on "experimental" treatments generally, not on infertility treatments specifically, the article is useful in explaining the reasons behind the exclusion for experimental treatments.
Call Number: .J86 .C7385
D’Andra Millsap, Sex, Lies, and Health Insurance: Employer-Provided Health Insurance Coverage of Abortion and Infertility Services and the ADA, 22 AM. J.L. & MED. 51 (1996).
The author provides an indepth exploration of whether excluding coverage of infertility treatment from employer-provided health insurance violates the ADA. The article discusses EEOC guidance and posits that acceptance of EEOC guidance by the courts is pivotal to the success of discrimination claims based on failure to provide infertility treatment under the ADA.
For full text of this journal, from the GSU Law Library computer terminals, go to http://heinonline.org/HeinOnline/CollectionIndex.pl?journal=amlmed.
Peter J. Neumann, Should Health Insurance Cover IVF? Issues and Options, 22 J. HEALTH POL., POL'Y & L. 1215, 1216 (1997).
This article focuses exclusively on insurance coverage of in vitro fertilization, which is often given a special status among ARTs. The author's exploration of the emotional debate surrounding IVF is a compelling reminder that unique social concerns accompany the determination of whether insurance should be required to finance IVF.
Call Number: .J86 .H42
Refusal to Cover Certain Infertility Procedures Is Not Bias, FAIR EMPLOYMENT PRACTICES GUIDELINES, Issue 571, Mar. 1, 2003, at 3.
This article discusses an insured's attempt to sue insurance plan for violation of Title VII and PDA for refusal to cover infertility treatment.
Schroeder, Stephanie, Infertility Debate, RISK MANAGEMENT, Vol. 46 Issue 8, Aug. 1999, at 56.
The author analyzes the debate regarding whether insurance coverage for infertility benefits should be required.
Vater, Joseph A., Jr., Traps for the Unwary in Administration of Employee Benefits Plans, COMPENSATION AND BENEFITS REVIEW, Vol. 34 Issue 3, Jun. 2002, at 40.
This article reviews exclusions from benefits plans, including exclusion of insurance coverage for infertility treatment, that have been challenged as violations of federal anti-discrimination statutes.
Go to http://search.epnet.com/direct.asp?an=6806897&db=buh.
E. BOOKS AND TREATISES
For access to these publications via the Georgia State University Law Library, call numbers are provided below. To find books and treatises using the law library catalog, go to GIL (http://gil.gsu.edu/) and enter the name of the publication. Note: When searching for additional books and treatises, useful search terms include: insurance, infertility, fertility, in vitro fertilization, artificial insemination. If a publication listed below is not available at the law library, additional instructions regarding access are provided.
COUCH ON INSURANCE §§ 144:48-49 (3d ed., West Group 2001).
This source provides a brief overview of the area; therefore, it is a good place to begin if the researcher is new to this topic. It does not delve far into the details of insurance coverage for infertility but does point to a few relevant cases. There is no discussion here of legislation regulating this area.
Call Number: KF 1159.5 .C62 1995 V. 10
COUCH ON INSURANCE § 181:38 (3d ed., West Group 2001).
This section provides a brief survey of judicial opinions considering whether in vitro fertilization procedures are covered under health insurance plans. Similar to the above sections, it points to some relevant cases but is scant on details.
Call Number: KF 1159.5 .C62 1995 V. 12
Douglas J. Cusine, NEW REPRODUCTIVE TECHNIQUES: A LEGAL PERSPECTIVE (Gower Publishing Co. Ltd. 1988).
This book discusses infertility and its causes, as well as reproductive technologies developed to enable conception. The author provides a good overview of reproductive technologies, but he does not discuss insurance coverage specifically.
Call Number: KD 3415 .C87 1988
Emily Jackson, REGULATING REPRODUCTION: LAW, TECHNOLOGY AND AUTONOMY (Hart Publishing 2001).
This source is useful for its discussion on the available reproductive technologies and the various criticisms of them. However, it does not point the researcher to laws relating to insurance coverage of infertility treatment because its discussion of regulations of reproductive technologies is general in scope and is limited to the United Kingdom.
Call Number: K 3611 .A77 J33 2001
1-14 LARSON ON EMPLOYMENT DISCRIMINATION § 14.04 (Matthew Bender & Co., Inc. 2003).
This section discusses that, while health insurance plans are required by Title VII to treat male and female employees equally, exclusion of coverage for certain infertility treatments has been held not to be a Title VII violation.
Available on Lexis (http://www.lexis.com).
NATIONAL INDEX: INSURANCE LAWS, Vol. II (NILS Publishing Co. 2000).
This source compiles lists of state statutes regulating an exhaustive index of insurance-related topics, including infertility coverage. This is an inexpensive starting place for locating relevant statutes, but any search will likely need to be updated, perhaps through Lexis or WestLaw.
NATIONAL INDEX: INSURANCE REGULATIONS, Vol. II (NILS Publishing Co. 2000).
This source compiles a list of state regulations of, among other insurance-related topic, insurance coverage of infertility treatment. It is an inexpensive starting place for locating administrative regulation of infertility coverage.
Call Number: KF 1165 .N38 1999 v. 2
3-6A The Law of Life and Health Insurance § 6A.07 (Matthew Bender & Co. 2003).
This section discusses major medical benefits in insurance policies and addresses state statutes mandating coverage for infertility treatments. [Please note that, while this source is a looseleaf service, the author was able to access it via Lexis (http://www.lexis.com). It is not currently available in the GSU Law Library.]
The following organizations provide useful information regarding infertility, assisted reproductive technologies, and the state of the law with regard to insurance coverage for infertility treatments. Please note that the listed websites were last visited by the author on November 18, 2003.
The American Society for Reproductive Medicine.
ASRM is a non-profit organization dedicated to “advancing knowledge and expertise in infertility, reproductive medicine and biology.” For more information, go to http://www.asrm.org. The website includes links to several “Patient Fact Sheets” explaining infertility generally, with statistics as to prevalence and causes, and offering information on specific testing and treatment procedures for infertility, as well as other issues likely to be of interest to the infertile couple.
Bertarelli Foundation
A global organization based in Switzerland, embracing a mission to “promote and improve the understanding of the many dimensions of infertility and to mobilize the talent, energy and resources to allow couples the joy of having children with dignity.” The foundation organizes global conferences and is currently concerned with the proliferation of multiple births as a result of infertility treatments. For more information, go to http://www.bertarelli.edu/.
CDC’s Reproductive Health Information Source
Provides information about assisted reproductive technology (ART) success at: http://www.cdc.gov/reproductivehealth.
Fertility World
This is a great starting point for learning about infertility. It is geared toward the infertile couple and includes many facts and statistics about sources of and treatments for infertility. For more information, go to http://www.fertilityworld.org/.
The InterNational Council on Infertility Information Dissemination, Inc.
For persons who are faced with infertility, the website (http://www.inciid.org) offers a state-by-state description of statutory mandates affecting infertility coverage at http://www.inciid.org/insurance.html and basic information on challenging an insurance policy which purports not to cover infertility treatment at http://www.inciid.org/legal.html.
RESOLVE
RESOLVE is a non-profit organization that provides information and support for overcoming the challenge of infertility. The organization "actively monitors legislative, regulatory and judicial developments that affect issues regarding infertility." The RESOLVE website (http://www.resolve.org) provides an excellent starting point for researching legislation on infertility. The organization can also be reached at 888-623-7044 or info@resolve.org.
Legislative History*
State |
Date |
Mandate to Cover |
Mandate to Offer |
IVF coverage |
Excludes IVF |
IVF Coverage Only |
| Arkansas | 1987 |
x |
x |
|||
| California | 1989 |
x |
x |
|||
| Connecticut | 1989 |
x |
x |
|||
| Hawaii | 1987 |
x |
x |
|||
| Illinois | 1991 |
x |
x |
|||
| Louisiana | 2001 |
x |
||||
| Maryland | 1985 |
x |
x |
|||
| Massachusetts | 1987 |
x |
x |
|||
| Montana | 1987 |
x |
||||
| New Jersey | 2001 |
x |
x |
|||
| New York | 2002 |
x |
||||
| Ohio | 1991 |
x |
||||
| Rhode Island | 1989 |
x |
x |
|||
| Texas | 1987 |
x |
x |
|||
| West Virginia | 2001 |
x |
*From http://www.resolve.org/main/national/advocacy/insurance/facts/history.jsp?name=advocacy&tag=insurance
Infertile individuals seeking health insurance coverage for infertility treatments face the reality that, without legislation mandating coverage, coverage will likely be denied. Where the insurance contract does not expressly exclude infertility treatments, insured individuals have argued, with success, that infertility treatment is covered under the terms of the contract and that failure to provide coverage is a breach, facing a host arguments by insurers that coverage was not contemplated by the terms of the agreement, such as that infertility is not an "illness" or treatment is "experimental." However, many insurance contracts now expressly exclude infertility treatment from coverage. Infertile individuals have also turned, with little success, to the Americans with Disabilities Act, Title VII of the Civil Rights Act of 1964, and the Pregnancy Discrimination Act, to argue that failure to offer insurance coverage for infertility treatment constitutes unlawful discrimination.
Recent state legislation mandating insurance coverage for infertility treatment currently appears to offer the greatest hope to infertile couples that coverage will be available. Many commentators have called for Federal legislation to mandate coverage in light of the fact that state statutes vary significantly in coverage and ERISA preempts state regulation of self-insured plans. Legislation to mandate insurance coverage for infertility treatment is currently pending in the United States Congress, as well as in the legislatures of many states.
