February 3, 2005
INFERTILITY--CAUSES, TREATMENT, INSURANCE AND DISABILITY STATUS
By: Saul Spigel, Chief Analyst
You asked for information on the causes of infertility, treatments and insurance coverage for it, and whether it is considered a disability under the Americans with Disabilities Act.
Infertility affects about 6.1 million Americans, or 10% of the reproductive age population. It is usually defined as the inability to get pregnant after trying for one year. Roughly one-third of infertility cases are attributable to female factors and about one-third to male factors. A combination of factors causes most of the remaining cases.
Ovulation disorder and blocked fallopian tubes are the most common female infertility factors. The most common male infertility factors are failure to produce sperm and producing too few sperm. Most cases—85 to 90%—are treated with fertility drugs or surgery. Surgery can be performed to repair damage to a woman's ovaries, fallopian tubes, or uterus and is sometimes used to correct male infertility. When drugs or surgery prove ineffective, assisted reproductive technologies, such as in vitro fertilization, can be used. This happens in about 3% of all cases.
Most employer insurance health plans provide limited, if any coverage, for infertility treatment. Fourteen states require insurers either to (1) offer infertility treatment coverage to group health plan sponsors (Connecticut is one of these) or (2) provide coverage in group and individual plans. But the services and treatments these states require to be offered or provided vary considerably.
The U.S. Supreme Court held in 1998 that infertility is a disability under the Americans with Disabilities Act (ADA). But the Court subsequently held that a person is not considered disabled under the act if the disability can be overcome by mitigating or corrective measures. And a lower court held in 2000 that, while infertility is a disability, an employer's health plan that excludes treatment for it is not discriminatory under ADA if it applies to all employees.
INFERTILITY CAUSES AND TREATMENT
Infertility is usually defined as the inability to get pregnant despite trying for one year. A broader view includes not being able to carry a pregnancy to term. Infertility affects about 6.1 million Americans, or 10% of the reproductive age population, according to the American Society for Reproductive Medicine (ASRM), a nonprofit organization of physicians, other health professionals, and academics.
Successful conception and pregnancy depend on a variety of factors: the production of healthy sperm and eggs, unblocked fallopian tubes that allow the sperm to reach the egg, the sperm's ability to fertilize the egg, the ability of the fertilized egg (embryo) to become implanted in the woman's uterus, the health of the embryo, and the hormonal environment created by the woman's body. Impairment of any of these factors can result in infertility.
Roughly one-third of infertility cases are attributable to female factors and about one-third to male factors. In the remaining cases, the causes are either a combination of factors or are unexplained (about 20% of these cases).
Ovulation disorder is the most common female infertility factor. Stress, diet, and athletic training can affect a woman's hormonal balance, which in turn affects ovulation. Hormonal imbalances can also
be caused by medical problems. Age is an important factor in ovulation. A woman's ability to produce eggs declines with age, especially after age 35. About one-third of couples where the woman is over 35 have problems with fertility.
Blocked fallopian tubes, which can occur when a woman has had pelvic inflammatory disease or endometriosis (a condition causing adhesions and cysts on the fallopian tubes or ovaries), are another major cause of female infertility. Birth defects involving the structure of the uterus and uterine fibroids are associated with repeated miscarriages.
The most common male infertility factors are failure to produce sperm and producing too few sperm. These problems can exist from birth or develop later in life due to illness or injury. Alcohol and drugs can temporarily reduce sperm quality, and environmental factors, including pesticides and lead, may cause some cases of male infertility.
Most infertility cases—85 to 90%—are treated with fertility drugs or surgery. Surgery can be performed to repair damage to a woman's ovaries, fallopian tubes, or uterus and correct a man's infertility problem.
When drugs or surgery prove ineffective, assisted reproductive technologies can be used. This happens in about 3% of all infertility cases, according to ASRM.
In vitro fertilization (IVF) is the most commonly used technology. It is often used when the fallopian tubes are blocked or a man has low sperm counts. It involves using a drug to stimulate the ovaries to produce multiple eggs. Once mature, these eggs are removed and placed in a culture dish with sperm for fertilization. After about 40 hours, eggs that have been fertilized and are dividing (embryos) are placed in the woman's uterus, bypassing the fallopian tubes.
The average cost of an IVF cycle is $12,400, according to ASRM (an individual cycle is successful only about 25% of the time). IVF accounts for about 98% of reported assisted reproductive technologies procedures. Other assisted technologies are gamete intrafallopian transfer and zygote intrafallopian transfer. In the former, three to five eggs are placed in a fallopian tube along with sperm for fertilization in the woman's body. In the latter, eggs fertilized in vitro are placed in the fallopian tubes, rather than the uterus.
Most health insurance plans provide limited, if any coverage, for infertility treatment, according to the Genetics and Public Policy Center, which is part of The Phoebe R. Berman Bioethics Institute at Johns Hopkins University. Some plans, the center notes, cover certain infertility treatment costs, such as diagnosis and drug treatment, as part of their general coverage, and some cover a certain amount of assisted reproductive treatments.
Fourteen states require insurers either to (1) offer infertility treatment coverage to group health plan sponsors or (2) provide coverage in group and individual plans. Connecticut is one of five states that mandate the offer of coverage (California, Ohio, Texas, and West Virginia are the others). Arkansas, Hawaii, Illinois, Maryland, Massachusetts, Montana, New Jersey, New York, and Rhode Island require insurers to provide coverage for infertility.
But the services and treatments these states require to be offered or provided vary considerably. Arkansas, for example, requires policies to cover IVF procedures, Hawaii requires a one-time benefit for outpatient expenses related to IVF, and New York excludes coverage for IVF. In Texas, a couple must have a five-year history of infertility to be eligible for IVF treatment.
We have attached a recent National Conference of State Legislatures summary of state insurance laws for infertility coverage. (Attachment 1)
INFERTILITY AS A DISABILITY UNDER THE ADA
Because of the limited availability of health insurance coverage for infertility treatment, many advocates looked to the ADA as way to secure coverage. They believed that if infertility were recognized as a disability under the act, employers and insurers would have to include infertility coverage in employer-sponsored plans.
Title I of the ADA prohibits disability-based discrimination in the “terms, conditions, and privileges of employment,” which include employer-sponsored health care plans. The ADA defines disability as “a physical or mental impairment that substantially limits one or more
major life activities.” In determining discrimination under Title I, a court must determine (1) that the person is disabled under the statute, (2) that the person is qualified for the position, and (3) whether reasonable accommodations would enable the person to perform the essential functions of the position.
Title III of the ADA prohibits any place of public accommodation, including insurers and health care providers, from discriminating against anyone based on a disability. Title V of the ADA exempts both employer-sponsored and self-insured plans from the ACT if they are bone fide benefit plans and are not used as a “subterfuge” to evade the law.
U.S. Supreme Court Action
The first question to be resolved in tying infertility to the ADA was whether infertility was a “major life activity.” During the 1990s, lower courts were split on this question; some held that reproduction was a “lifestyle choice,” not a major life activity (Krauel v. Iowa Methodist Medical Center, 915 F. Supp. 102), others held that it was a major life activity (Pacourek v Inland Steel, 916 F. Supp. 797).
In 1998, the U.S. Supreme Court settled the question, finding in Bragdon v. Abbott (524 US 624) that reproduction is a “major life activity.” Bragdon involved a dentist who refused to fill the cavity of an asymptomatic HIV-infected woman. And the Court held that the risks of passing the disease to offspring constituted a “substantial limitation” on reproduction. Consequently, infertility met the ADA's criteria as a disability.
But in three ADA cases following Bragdon, the Court held that an individual is not considered substantially limited in performing a major life activity, that is disabled, if the impairment can be overcome by mitigating or corrective measures. These measures included corrective lenses, prescription medication for hypertension, and self-corrective measures to compensate for an eye condition. The Court also held in these cases that individuals are regarded as disabled only when they are unable to perform a class or range of jobs, not merely when they cannot perform a particular job (Sutton v. United Airlines, 527 US 471; Murphy v. United Parcel, 527 US 516; Albertson's Inc v. Kirkinburg, 527 US 555).
Subsequent Case. In what seems to be the principal post-Bragdon case, the Southern District Court of New York found that while infertility was a disability, an employer did not discriminate against an infertile woman by excluding infertility treatment from its health insurance plan because the exclusion applied to all employees. The court also held that the plan's exclusion, which predated passage of the ADA, did not constitute “subterfuge” under the ADA's Title V (Saks v. Franklin Covey, 117 F. Supp 2d 318, 2000).
Saks appealed to the 2nd Circuit Court of Appeals, but not on her ADA claim. Her original suit was also based on claims that the employer's health plan exclusion for infertility treatment violated the federal Pregnancy Disability Act (PDA) and Title VII of the Civil Rights Act of 1964. The court rejected both claims. It held that infertility alone is not a condition unique to women and therefore, in this case, was not subject to the special protections of the PDA, which prohibit employers from discriminating in providing fringe benefits on the basis of pregnancy, childbirth, or related medical conditions. And, it said the exclusion did not constitute sex discrimination because the need for the assisted reproduction procedure may be due to either male or female infertility and requires participation by both male and female partners (Saks v. Franklin Covey, 316 F. 3d 337, 2003)