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The Politics of Infertility: Recognizing Coverage Exclusions as Discrimination

52 Pages Posted: 29 Sep 2007 Last revised: 25 Sep 2009

Elizabeth Pendo

Saint Louis University - School of Law

Abstract

Infertility affects approximately ten percent of the reproductive-age population in the United States, and strikes people of every race, ethnicity and socio-economic level. It is recognized by the medical community as a disease, one with devastating physical, psychological, and financial effects.

In 1998, the Supreme Court held in Bragdon v. Abbott that reproduction is a major life activity within the meaning of the ADA. Many lawyers, activists and scholars thought that coverage for infertility treatment would follow soon after. In fact, in 2003 in the first major case applying Bragdon to health benefits, Saks v. Franklin Covey, the Second Circuit held that an employer's health plan could exclude coverage for infertility procedures performed on women only without violating Title VII or the ADA.

This Article critically examines the decision in Saks, highlighting the increasingly inequitable patterns of protection for workers and their families with regard to coverage of treatment for infertility. Part I provides a brief overview of the disease of infertility, medical treatments of infertility, and the cost of such treatments. Part II provides an overview of the important but limited protections under federal and state law against discrimination in benefits focusing on Title VII, the ADA and ERISA. Against this backdrop, Part III closely examines the decisions of the trial and appellate courts in Saks, and the rejection of plaintiff's challenges to the exclusion of certain infertility treatments under the ADA, Title VII, PDA and state law. Part IV provides a roadmap of alternative legal and factual analyses for Title VII and ADA claims that could be successfully pursued by future plaintiffs. Finally, Part V critically examines the policy arguments commonly raised in opposition to coverage, including reproduction as a "lifestyle choice" and the fear of increased health care costs, and concludes that public policy strongly supports comprehensive coverage of infertility.

Keywords: fertility, infertility, civil rights, gender, disability, health care, health insurance, ERISA, ADA, Title VII, PDA

JEL Classification: I1, J7

Suggested Citation

Pendo, Elizabeth, The Politics of Infertility: Recognizing Coverage Exclusions as Discrimination. Connecticut Insurance Law Journal, Vol. 11, 2005. Available at SSRN: https://ssrn.com/abstract=1017993

Elizabeth Pendo (Contact Author)

Saint Louis University - School of Law ( email )

100 N. Tucker Blvd.
St. Louis, MO 63101
United States
(314) 977-2767 (Phone)

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