Infertility as Disability: H.I.V. Case May Open a Door

By ESTHER B. FEIN

A 40-year-old woman struggling to conceive a baby is told by her doctor that the quality of her eggs is poor and the lining of her uterus doesn't replenish itself well enough to sustain a pregnancy. Is she fairly average, or is she disabled?

The Supreme Court ruled 5-4 last month that reproduction was a "major life activity" and that when a person's ability to reproduce is substantially limited she (or he) meets the definition of disability under the Americans With Disabilities Act.

The case, Bragdon vs. Abbott, actually had little to do with infertility; it centered on a dentist's refusal to treat a woman who was infected with the virus that causes AIDS. She was not infertile, but had decided to forego childbearing because of the danger of passing on the virus. So her reproduction was effectively impaired, the court said, and she qualified for protection under the act.

Advocates for the infertile seized on the decision as a victory for all people whose ability to procreate is impaired. It is the legal wedge they need, they said, to win broader insurance coverage for infertility treatments and to force employers to adjust work schedules to accommodate the treatments.

But experts say it is by no means certain that the courts will make that conceptual leap.

"This decision is a really strong tool for us," said Diane Wachenhein, government affairs director for Resolve, a national infertility advocacy organization. The treatments can be "very time consuming and debilitating," she said, adding that insurance companies and employers often view them as elective
and do not cover them.

The ruling, several health-law experts said, is more likely to prod employers to give employees time to undergo infertility treatments than it is to push them to expand insurance coverage.

The Old Fashioned Way

George Annas, chairman of the health law department at Boston University's School of Public Health, said the case would force businesses to accommodate the treatment schedules of infertile people just as they now accommodate women who are pregnant or recovering from childbirth.

Insurance is another matter, he said, adding that the disabilities act is not meant to create new rights. "It provides that you cannot be discriminated against," Annas said. "Doctors are not obliged to care for any disability for nothing, insurers are not required to cover all disabilities for no extra charge.

"And in terms of the new reproductive technology and what businesses will have to cover, this ruling doesn't say anything. In fact, it assumes that reproduction occurs the traditional way: a man and a woman having sex and a woman giving birth."

Still, with this case now part of the legal arsenal, experts said many businesses might try to find a way to accommodate infertile employees in order to avoid expensive, protracted litigation.

Earlier this year, Chicago agreed to cover infertility treatments for its employees and to pay $1.5 million worth of claims that had been denied over the previous 10 years.

Thinking About Menopause

The settlement came after a judge ruled that infertility was a disability under federal law. The case was brought by a Chicago police officer, Anita Bielicki, who paid thousands of dollars for infertility treatments that resulted in the births of two children. Illinois is one of only a few states that mandate coverage of infertility treatments, but because the City of Chicago was self-insured, under federal law it is exempt from the requirement.

"Clearly and rightfully the Abbott case gives litigants a first step," said Wendy Parmett, a professor specializing in health and disability law at Northeastern University Law School who, with Bennett Klein, represented Ms. Abbott in the Supreme Court case. "And I do believe that many insurers' refusal to cover these treatments, or setting caps on treatment, violates the letter and spirit of the law."

Still, she said, legal hurdles remain.

One key question is whether all infertility is an impairment that is covered by the disabilities act.

"Not everyone whose fertility is impaired and is seeking treatment falls within the parameter of this law," Ms. Parmett said.

Among the unanswered questions, Ms. Parmett said, is whether women in or near menopause should be considered disabled. "The term infertile is very broadly encompassing, but the ramifications of this finding may not be," she said.

Annas suggests that one way to distinguish the disabled infertile (for example, women in their 20's, or those whose ovaries were removed because of cancer or other diseases) from those who are infertile because of their age would be to create statistical probability charts for becoming pregnant without assistance for every age.

"If more than half the people at your age can't have a baby without help," he said, "then it's not a disability. It's the norm."