Bridging the gap between the "have" and the "have-nots": the ACA prohibits insurance coverage discrimination based upon infertility status.

Author:Mastroianni, Marissa A.
Position:Patient Protection and Affordable Care Act

    Due to the high costs of infertility treatment, many infertile Americans find themselves without the means to procreate. (1) Compounding this issue, access to infertility treatment varies greatly from state-to-state largely due to the differences in state insurance coverage mandates. (2) The access to infertility treatment, such as artificial reproductive technology ("ART"), often correlates to factors like household income, marital status, education level, race, ethnicity, and age. (3) Therefore, a dichotomy exists between the "haves," those with the financial means to undergo infertility treatment, and the "have-nots," those who lack such means.

    In an effort to curb this preclusive effect, a total of fifteen states have passed legislation that requires insurers to provide coverage, or at least offer coverage, for infertility treatment. (4) The infertile individuals living within the other thirty-five states and the District of Columbia, however, do not enjoy similar insurance coverage. (5)

    Even within the fifteen states that have passed infertility coverage mandates, the scope of the laws vary and may be significantly limited. (6) Thus, individuals without the necessary financial means to pay out-of-pocket for infertility treatments are disadvantaged depending on the laws of the state in which they reside. Allowing the states to choose whether to provide infertility insurance coverage has proven to yield discriminatory effects upon infertile individuals. In fact, only about 25 percent of U.S. health insurance plans include infertility benefits. (7)

    The lack of access to infertility treatment for the majority of Americans is not a new concern. For example, in 2001, a Michigan Federal District Court held that infertility is a disability under the Americans with Disabilities Act ("ADA") and therefore, relevant federal protections apply to infertile individuals. (8) Moreover, the National Women's Law Center spearheaded a campaign called "Being a Woman Is Not a Preexisting Condition" that seeks to prevent insurers from raising insurance premiums based upon gender. (9) Despite the court ruling and political efforts, there were no reforms made on the federal level to mandate health insurance coverage for infertility treatment. (10)

    The advent of the Patient Protection and Affordable Care Act ("ACA"), (11) however, changed the landscape for the health insurance market and provides a new lens in which to view this issue. The ACA instituted large-scale health insurance reform at the federal level in an effort to control the steadily increasing cost of health care in the United States. (12) Specifically, health care spending in 2009 represented 17.6% of the United States' GDP and was projected to increase to 19.8% of GDP by 2020. (13) The most highly publicized provision of the ACA is the individual mandate requiring the vast majority of Americans to enroll in either private or public health insurance plans. (14)

    More pertinent to this article, the ACA greatly affected the private insurance market and public health plans. (15) First, the ACA created a generalized list of categories for minimum "essential health benefits" that all qualified health plans must offer to its beneficiaries. (16) Significantly, there are several statutory provisions within the ACA regarding nondiscrimination. (17) The Department of Health and Human Services ("DHHS"), the authoritative decisionmaker on implementing the ACA, issued several regulations regarding nondiscrimination in the health insurance market. (18) In particular, qualified health plans may "[n]ot employ marketing practices or benefit designs that will have the effect of discouraging the enrollment of individuals with significant health needs." (19) Therefore, the ACA and subsequent regulations represent a new legal framework in which to view discrimination in the national health insurance market.

    The ACA's statutory language is silent as to infertility treatment coverage, and its effect upon the fifteen states that have enacted state insurance mandates. (20) Additionally, DHHS has not included infertility coverage as an essential health benefit in any subsequent regulation. (21) This is partly due to the fact that DHHS provided states with the authority to create their own essential health benefit standards. (22) Specifically, DHHS proposed a policy in December 2011 that provided states with "the flexibility to select ... 'benchmark plan[s]'" based upon typical insurance coverage plans within the state. (23) On February 27, 2015, DHHS renewed this policy through 2017. (24) In accordance with this policy, the states with insurance mandates regarding infertility treatments adopted essential benefit standards that incorporated such laws. (25) Therefore, in this context, the status quo has been maintained, so far.

    In light of the changes created by the ACA, the question arises: Does the fact that some infertile individuals in the United States lack access to insurance coverage for infertility treatment violate the ACA's anti-discrimination framework? This article answers in the positive. Although medical practitioners and scholars have already addressed the problem of unequal access to infertility treatment, (26) this article will use the ACA as a new lens to view this inequality. Interestingly enough, congressional hearings regarding the passage of the ACA uncovered stories of women who were wholly "denied insurance coverage because their infertility [status] was treated as a preexisting condition." (27) Due to financial restrictions, often no hope exists for many infertile individuals who live in states without insurance mandates to obtain the means to procreate. (28)

    This article will proceed as follows. Part II will discuss the various types of infertility treatment and the associated costs. This section will also discuss established demographic patterns in the type of individuals who undergo such treatment. Part III will address the different insurance mandates in the fifteen states that have enacted legislation to provide coverage for infertility treatment. It will also argue that inherent inequalities arise from the fact that access to infertility treatment is, in part, based upon state residency. Part IV explains the relevant federal insurance law reforms instituted by the ACA and illustrates the ways in which the reform brought about more inclusive coverage standards. Finally, Part V argues why the inequality in access to infertility treatments amongst Americans violates the ACA's anti-discrimination framework.


    Similar to many health issues, no single universal definition for infertility exists. The most common definition of infertility is a "disease of the reproductive system" (29) where an individual is unsuccessful in becoming pregnant after more than one year of unprotected sex. (30) The definitional variations for infertility produce different statistical findings on the number of infertile individuals and how they are treated. (31) Moreover, defining infertility as the inability to do something is problematic for statistical purposes. (32) For example, a physician treats two women who both have blocked fallopian tubes, but only one woman is trying to get pregnant. Despite both women having blocked fallopian tubes, only one of them would be diagnosed as infertile. (33) Therefore, the below statistics should be viewed in light of these difficulties in collecting adequate data.

    According to the Centers for Disease Control and Prevention ("CDC"), approximately 6.7 million women between the ages of 15-44 suffer from an impaired ability to become pregnant. (34) Therefore, almost eleven percent of women in the United States suffer from this impaired ability. (35) Additionally, infertility affects men and women equally. For example, the male partner is either the sole cause or a contributing cause for infertility in approximately 40 percent of infertile couples. (36)

    In addition to the high financial costs associated with infertility treatment, (37) a diagnosis of infertility is associated with a significant emotional toll. Evidence shows that the psychological effects sustained by infertile individuals are similar to the effects on heart disease and cancer patients. (38) Further, an infertility diagnosis may contribute to a patient developing clinical depression, social isolation, and overall affect his or her quality of life. (39) Indeed, infertility affects a "major life activity" as determined by the United States Supreme Court in Bragdon v. Abbott. (40) These additional considerations, that are too personal to be monetarily valued, must not be overlooked.

    Part A of this section will briefly discuss the types of infertility treatment and the associated financial costs. The impact that information has on the United States population will be examined in Part B.

    1. Varying Types of Infertility Treatments and the Costs Associated with Such Treatment

      Infertile individuals have several options for medical procedures to increase their chances to conceive a child. Defining infertility treatment can be undertaken in a broad or narrow sense. For example, some physicians may believe providing general advice to increase a couple's chances of becoming pregnant fits within the infertility treatment umbrella and therefore, reflects a broad meaning of infertility treatment. (41) For the purposes of this article, however, a more narrow perspective on infertility treatment is adopted that includes only the three levels of treatment described below.

      As a preliminary matter, physicians will first run diagnostic exams of each partner's reproductive organs if a couple is experiencing difficulty in getting pregnant. (42) About fifty percent of patients who receive infertility evaluation decide to undergo some type of infertility treatment. (43) Depending upon these results, there are generally...

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