Infertility is a Disability: Understand where this comes from and what it means for you

by Davina Fankhauser
President - Fertility Within Reach

Infertility is a Disability:  Understand where this comes from and what it means for you.

“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.”

In 1998, the U.S. Supreme Court found in Bragdon v. Abbott (524 US 624) that reproduction is a “major life activity.” 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.”

So what does this mean? 

Is an infertility patient disabled?  Technically, yes. 

Are infertility patients protected under the Americans with Disabilities Act?  Not necessarily. 

Why?

“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).”*

I am not an attorney, but I do believe my opinion has merit.  So here is my argument against the Supreme Court and lower courts which do not support ADA protection for infertility patients:

First, to the Supreme Court who said, “a person is not considered disabled under the act if the disability can be overcome by mitigating or corrective measures.

My reply is simple:  Few individuals can access corrective measures to treat their disability because they lack the health care benefits which make their required treatment affordable.  Is the cancer patient without health benefits less sick or disabled because they are unable to afford the health care needed to treat their disease?  The fact that economic factors (linked with socio economic and racial factors) influence whether an individual can attempt to overcome their disability is discriminating.

Second, to the lower court who found, “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.”

My reply is this:
I would agree if the employers denied health benefits to treat all diseases, there would be no discrimination.  However, employers are choosing which diseases should receive health coverage.  The employers have elected to refuse medical benefits for this particular disease; one that impacts one in six couples and is considered the third most threating disease globally, according to the World
Health Organization**.  Denying employees an opportunity to access this specific health care benefit is discriminatory.  Until all infertility patients have equal access to health care which allows for the opportunity to “overcome by mitigating or corrective measures”, they will remain disabled.

What is your reply?

Supreme Court of the United States of America
General Contact Information:
U.S. Mail:Supreme Court of the United States  1 First Street, NE  Washington, DC 20543
Telephone:202-479-3000 TTY:202-479-3472  (Available M-F 9 a.m. to 5 p.m. eastern)
http://www.supremecourt.gov/contactus.aspx

 

*Spigel, Saul. Feb 3, 2005.  OLR Research Report: “INFERTILITY–CAUSES, TREATMENT, INSURANCE AND DISABILITY STATUS”

**World Health Organization Bulletin 2010

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Davina Fankhauser

President - Fertility Within Reach

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