Elizabeth Pendo, The Politics of Infertility: Recognizing Coverage Exclusions as Discrimination, 11 Conn. Ins. L.J. 293 (2004), https://digitalcommons.law.uw.edu/faculty-articles/976
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. Nonetheless, comprehensive coverage of infertility treatments under employer-sponsored plans - where, like Jane, most Americans get health insurance - appears to be the exception rather than the rule. Can Jane sue for disability discrimination, sex discrimination, or both? While the answer - "it depends" - should not be surprising to anyone who has survived even a semester of law school, the facts upon which the answer depends are increasingly surprising. Why is Jane infertile? If she went ahead with the uncovered treatment, was it successful? Is Jane's plan insured or funded by her employer? When was the exclusion established? Does the plan treat male infertility more frequently than female infertility? And is Jane married? Underlying these factual and doctrinal issues is the deeper question, should Jane be able to state a claim of discrimination? In other words, why should the exclusion of treatments for infertility such as in Jane's plan be recognized as sex discrimination, disability discrimination, or both? This Article seeks to explore these questions.