The injustice of infertility insurance coverage: an examination of marital status restrictions under state law.

• Author: Cardinale, Jessie R.
• Position: Chief Judge Lawrence H. Cooke Sixth Annual State Constitutional Commentary Symposium: The State of State Courts

1. INTRODUCTION II. THE CONDITION OF INFERTILITY III. HISTORY OF INFERTILITY INSURANCE COVERAGE A. Federal Law B. State Law 1. Hawaii 2. Rhode Island IV. REASONS TO INCREASE COVERAGE V. CONCLUSION I. INTRODUCTION

   Infertility is a disease of the reproductive system that impairs the conception of children. (1) To date, it affects about 7.3 million people. (2) Often described as one of the most painful and difficult life crises that an individual and couple can face, infertility creates feelings of anxiety, depression, and stress as it touches upon "every aspect of [one's] life" ranging from his or her "sex life [to] relationships with friends and family [to] jobs." (3) Luckily, improvements in infertility treatments are making it possible for more infertile couples to experience the birth of a child.

   One obstacle that deters many from seeking these options is the high costs associated with infertility treatments. (4) Despite both the American Society for Reproductive Medicine ("ASRM") and the American College of Obstetricians and Gynecologists ("ACOG") recognizing infertility as a disease in its disruption of the normal functioning of the reproductive system, the federal government has not yet acknowledged this condition as such. (5) As a result, there is no mandate that health insurance companies include coverage of infertility treatments in their policies. (6)

   In the United States, only fifteen states mandate health insurance companies to provide some coverage for infertility treatment. (7) Additionally, in five of these fifteen states, the law only requires coverage if the woman is married. (8) Therefore, unmarried couples, same-sex couples, and single women are legally denied a health benefit that is available to others who pay the same premiums. Denial of coverage under these circumstances amounts to discrimination by state laws and by insurance providers who establish and enforce such policies. As federal law does not mandate such coverage, it is important to look to state law to determine whether this limitation on infertility insurance is permissible. It will be argued that these infertility insurance statutes are unconstitutional because they place an undue burden on an individual's right to privacy under state law.

   Part II provides a brief overview of infertility, including costs associated with possible treatment options. (9) Part III reviews the history of insurance coverage for infertility in the United States. (10) Part A focuses on the history of coverage in relation to the federal government through an evaluation of the Americans with Disabilities Act ("ADA") and the Pregnancy Discrimination Act ("PDA"). (11) Next, Part B highlights two of the fifteen states (Hawaii and Rhode Island) to determine the constitutionality of their infertility insurance coverage that is limited to married women. (12) These states were picked at random to illustrate the constitutionality of this restricted form of insurance coverage. First, Hawaii's constitutional jurisprudence is examined to show that this state is likely to find its limitation unconstitutional as based on the Privacy Clause in its state constitution. (13) Then, Rhode Island is evaluated to show that based on its constitutional jurisprudence, this state would also likely find its marital status restriction unconstitutional. (14) For Rhode Island, however, it can also be argued that the statute may be deemed valid due to the absence of an express privacy clause in its state constitution and a lack of precedent on the matter.

   Part IV argues that regardless of whether an individual has a right to coverage for fertility treatment under state or federal law; there are strong economic and social policy reasons for passing a legislative mandate. (15) Moreover, a mandate would eliminate the problem of inconsistent and restrictive coverage under state law.

2. THE CONDITION OF INFERTILITY

   Diagnosis of infertility, a disease that impairs the ability to conceive a child, occurs when one is unable to get pregnant (1) after one year of trying; (2) after six months of trying if the woman is thirty-five or older; or if (3) the woman can get pregnant but is unable to stay pregnant. (16) This condition affects approximately twelve percent of women and their partners (7.3 million) in the United States ages fifteen to forty-four. (17)

   Infertility occurs equally in both men and women with male and female factors each accounting for about one-third of infertility problems. (18) For the remaining one-third of infertile couples, this condition is thought to be caused by a combination of problems in both partners. (19) Additionally, in about twenty percent of the cases the cause is unknown. (20)

   Common causes of male infertility include problems with the production and delivery of sperm, while the predominant cause of female infertility is an ovulation disorder. (21) It has also been alleged that environmental factors play a role in infertility, such as unhealthy body weight and the use of alcohol, tobacco, and illegal drugs. (22) Another concern is structural infertility, which occurs when an individual or couple must find another means of reproducing "because of the social structure in which they self-identify." (23) This includes single individuals and same-sex couples. (24) In these situations, the parties are unable to conceive a child biologically on their own and must access reproductive assistance to achieve parenthood. (25)

   To remedy this problem, infertility treatments have been made available. The type of treatment recommended, however, depends on the fertility issue. Less invasive therapies, for women, such as hormone therapy can range from $200-$3,000 per cycle, while tubal surgery can range from $10,000-$15,000 and requires a hospital stay as well as poses high risks of complications. (26) Another option, assisted reproductive technologies ("ART"), is a procedure where both the egg and sperm are handled. (27) In general, it "involve[s] surgically removing eggs from a woman's ovaries, combining them with sperm in the laboratory, and returning them to the woman's body or donating them to another woman." (28) A common form of ART includes in vitro fertilization ("IVF") whereby fertilized eggs are transferred into a woman's uterus. (29) Costs range from $10,000-$18,000 per cycle. (30) Today, over one percent of all infants born in the United States each year are conceived using ART and this number continues to rise steadily. (31)

3. HISTORY OF INFERTILITY INSURANCE COVERAGE

   1. Federal Law

      Insurance coverage has become a key issue with the rising costs of infertility treatments. Currently there is no federally mandated coverage and only fifteen states have laws requiring insurers to either cover or offer to cover some form of infertility diagnosis and treatment. (32) Insurers did not begin to include infertility treatments until the 1990s. (33) The three main arguments attributed to denying coverage included that, "1) infertility is not an 'illness,' 2) artificial insemination is not a 'treatment,' and 3) infertility treatment is not 'medically necessary.'" (34)

      Although some argue that various federal laws require insurance protection for infertility treatment, attempts to enforce such arguments in the courts have failed. (35) One avenue to mandate infertility insurance coverage is the ADA. (36) Under this statute, an employer cannot "discriminate against a qualified individual with a disability" in the "terms, conditions, and privileges of employment." (37) The landmark decision of Bragdon v. Abbott (38) was the first glimmer of hope for infertile couples hoping they would be afforded protection under the ADA. (39) In this case, the plaintiff, living with HIV, brought suit under the ADA, claiming that a dentist discriminated against her when he refused to provide treatment in his office due to her HIV status. (40) Here, the United States Supreme Court held that "even in the so-called asymptomatic phase, [HIV] is an impairment which substantially limits the major life activity of reproduction." (41) As a result, the plaintiff was afforded protection from discrimination as provided by the ADA. (42)

      Following Bragdon, many infertility rights advocates believed this decision would compel insurers to provide coverage for infertility. (43) Unfortunately, this was not the result. (44) In Saks v. Franklin Covey Co., the plaintiff brought an action against defendant employer for its insurance plan's lack of coverage for surgical impregnation procedures. (45) Here, the court looked to its decision in Bragdon to determine whether coverage should be mandated as required by the ADA. (46) It was held that the plaintiffs "infertility 'substantially limits' her ability to reproduce--indeed, it appears to prevent it altogether, absent outside intervention of a very drastic nature." (47) Ultimately, the court decided that, though the plaintiff had a viable claim, the defendant's failure to provide insurance coverage for infertility did not violate the ADA. (48) The ADA claim failed for two reasons: (1) Franklin Covey's insurance plan offered the same coverage to all employees (both fertile and infertile) and (2) Franklin Covey's plan was not covered by the ADA. (49)

      The reasoning behind the Saks decision is arguably flawed. First, the court stated that insurance coverage was provided uniformly to all employees. (50) However, the Saks court could have distinguished between fertile and infertile individuals. This argument was made in EEOC v. Staten Island Savings Bank, (51) where the court was asked to differentiate between the short-term insurance coverage provided to those with mental disabilities and the long-term coverage provided to those with physical disabilities. (52) In Staten Island...