Redefining the right to reproduce: asserting infertility as a disability under the Americans with Disabilities Act.

• Author: Rydel, Peter K.

INTRODUCTION

Ms. Kraft and her husband live in a tight, one-bedroom apartment on the Upper East Side of Manhattan.(1) They are deep in debt, both to their families and to credit card companies, and have been forced to withdraw money from their retirement account and sell family heirlooms just to get by.(2) It might seem the Kraft's do not know how to handle money; or they have school loans to pay off; or they have a gambling problem. The fact of the matter is Ms. Kraft(3) and her husband have spent much of their discretionary income not on paying off loans, but on trying to get Ms. Kraft pregnant.(4)

The Krafts face what approximately one out of every six couples face today(5): being infertile and not having the funds to take advantage of the medical procedures available to treat this physical impairment. The costs of fertility procedures are high.(6) For example, an in vitro fertilization procedure(7) may cost up to $8,000, and usually more than one attempt is necessary to achieve success.(8) The problem is that most insurance plans will not pay for such procedures because they are considered elective rather than necessary.(9)

Despite this, thirteen states, including New York, require that health plans offer coverage for some kinds of infertility treatments, while two states, Massachusetts and Illinois, mandate in vitro fertilization coverage.(10) This is good news for men and women who are covered by health plans subject to those state regulations, such as plans offered through a direct contractual relationship between the insured and the insurer, or an insured employer health plan. However, men and women who receive medical benefits through a self-insured plan offered as a fringe benefit by their employers are not protected by such regulations as a result of the Employee Retirement Income Security Act (ERISA),(11) a federal law which preempts state laws with respect to the regulation of such self-insured plans.(12) Under ERISA, beneficiaries are not given the same protection they would receive if their health plan was regulated by state law. Aside from recent limited exceptions, ERISA does not specify the kinds of care a health plan must provide, and provides a lower floor of protection than many of the state laws it preempts.(13) ERISA, and its preemption of state law, effectively permits employers that maintain self-insured medical plans to cap or refuse to pay for fertility drugs and procedures because there is no clear-cut federal statutory or regulatory authority controlling their actions.(14)

Thus, men and women who are members of theft employer's self-insured health plans must find a way to have treatment of their infertile condition covered. The best source of such protection is Title I of the Americans with Disabilities Act (ADA or Act).(15) The ADA is designed to protect qualified individuals with disabilities(16) from disability-based discrimination in employment,(17) in the provision of services,(18) and by places of public accommodation.(19) Title I of the ADA, the employment provision, protects disabled individuals in the contents, terms or conditions of their employment.(20) One example of such terms or conditions is the fringe benefits(21) an employee receives by virtue of his or her employment.(22) Fringe benefits include health benefits for which one is eligible through an employer's health plan, whether employer-insured or self-insured.(23) The ADA is the statute to which those experiencing discrimination in health plans must turn.

Although the ADA is designed to address discrimination prevalent in employment settings in America,(24) the statute contains poorly defined terms, leaving much of the effectiveness and reach of the statute to be defined by courts. One such term is "disability." The Supreme Court of the United States recently provided some guidance with respect to defining disability and the factors that must be considered when determining whether one meets the definition.(25) In Bragdon v. Abbott,(26) the Court held that an individual who is infected with the Human Immunodeficiency Virus (HIV) is considered disabled, even if asymptomatic.(27) As a result of this opinion, employers who sponsor health benefit plans may be precluded from capping the benefits provided for HIV-related treatment on the basis of an individual's disease.(28)

In addition, three cases handed down in June of this year require a court to examine the extent to which "mitigating measures,"(29) both artificial and natural, correct the impairment.(30) These decisions limit the definition of disability to those impairments which substantially limit a major life activity.(31) As will be shown, however, these decisions should have little effect upon the ability to assert infertility as a disability.(32)

Of most importance to the infertility debate is the Supreme Court's recognition of reproduction as a major life activity.(33) What remains is the issue of how far the Court's reasoning extends to permit other diseases or physical impairments to be "disabilities" for purposes of the ADA.(34) It is not clear whether infertility is a disability.(35) If it is not, employer-maintained self-funded health plans may continue to refuse to pay for fertility treatments without violating the ADA. This Comment addresses the impact the Supreme Court's opinions will have upon the ability of men and women who are infertile to assert their infertility as a disability under Title I of the Act. Through a study of the ADA itself and the caselaw surrounding this particular issue, this Comment will show why and how infertility is a disability under the Americans with Disabilities Act.

The scope of this Comment is limited to the impact of Bragdon upon employers which maintain self-insured benefit plans for their employees. Following this introduction, Part I will examine the purpose behind the ADA, briefly introduce key terminology used by the Bragdon Court in concluding HIV is a disability, and break down the statutory definition of disability as it has been interpreted by both the courts and the regulations governing application of the ADA.(36) Part II will briefly examine the rationale behind a recent court of appeals case to which the Bragdon decision is diametrically opposed, and then look at the Bragdon decision itself and the foundation for the Court's holding.(37) This section will also address the Court's most recent analysis, which further defines disability under the ADA. Part III will briefly discuss what infertility is, and look at several cases addressing it under the ADA.(38) Part IV will assert that infertility falls within the rubric of disability under the ADA, and expose the confused message sent by the Court whether a disability per se rule may ever exist.(39) This Comment will conclude that self-insured employers not subject to state regulation must be wary of denying infertility coverage to employees.(40)

1. THE AMERICANS WITH DISABILITIES ACT

   1. Title I of the ADA

      When Congress enacted the Americans with Disabilities Act in 1990,(41) it recognized that people with disabilities have a pervasively inferior status in America and "have often had no legal recourse", unlike those who are discriminated against on account of their race, age, gender, national origin or religion.(42) Congress found an astounding 43,000,000 people in America have some form of mental or physical impairment.(43) Indeed, Congress reported this fact directly in the statutory language of the ADA.(44) Congress further noted the lack of a comprehensive statute intended to bring them into the mainstream of American society, and therefore the purpose of the ADA is "to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities."(45)

      One purpose of Title I is to prohibit disability-based discrimination in employer-provided health benefits, whether offered through self-funded or other types of benefit plans.(46) Section 12112(a) of Title I establishes a general rule applicable to all titles under the statute; it states no employer may "discriminate against a qualified individual with a disability because of the disability of such individual in regard to ... terms, conditions, and privileges of employment."(47) As employer-provided health benefits are one of the "terms, conditions, and privileges of employment,"(48) as an employer may not impose a cap upon the benefits one receives as a member of the employer's health plan (insured or self-insured) based on the disability of such an individual.(49) Nor can it decline to cover the costs of treating a disability because it fears its plan will be bankrupted if it does so.(50)

      Furthermore, Title I mandates that employers provide "reasonable accommodation[s]" to those disabled employees who can perform the "essential functions" of their jobs with such accommodations.(51) Reasonable accommodations include ensuring physical structures are accessible to those with disabilities, providing job restructuring and altered work schedules, as we]] as "other similar accommodations for [disabled] individuals."(52) The denial of such "accommodations" is a basis for suit Under Title I. Individuals who are infertile and desire to undergo medical treatment not only wish to have such procedures paid for by insurance, but frequently require altered work schedules or even time off from work to accommodate such procedures.(53) Establishing infertility as a disability under the ADA will compel employers to provide such accommodations so long as the accommodations are considered "reasonable."(54)

   2. Disability Under Title I of the ADA--Generally

      Section 12102 of the Americans with Disabilities Act provides three categories of disability.(55) These categories are taken almost verbatim from the Rehabilitation Act of 1973.(56) A person who falls within one of these three categories is considered disabled. One category permits an individual's mental or...