nce women were considered disabled by pregnancy or the mere possibility of it. Before the modern civil rights era, women could be fired because they were pregnant or not hired because they seemed likely to become pregnant. From the late nineteenth through the mid-twentieth century, women were excluded, under law, from presumptively masculine occupations that were considered incompatible with their maternal functions; they were also subject to protective labor laws that limited their hours of work and their work assignments, in order to preserve their ability to bear and care for children.
The drive to define women as human beings first and mothers second has been central to demands for equal rights, and in the 1970s, feminists succeeded in outlawing pregnancy discrimination in the workplace. Women are no longer considered disabled by fertility. Today, however, they may lay claim to being disabled by infertility.
It is no small historical irony (and not exactly a sign of progress) that demands for expanded health care coverage have helped inspire a drive to define infer-tility as a disability under federal law and thus make infertility coverage a federal mandate. Of course, infertility affects men and women, but it continues to be considered a woman's problem, often blamed on decisions by professional women to delay childbearing, and as a medical matter, women are most often the subjects of the expensive infertility treatments.
Federal courts have divided on the question of extending the Americans with Disabilities Act (ADA) to infertile people, but a 1998 Supreme Court decision strengthened the case for infertility rights advocates. In Bragdon v. Abbott (a lawsuit brought under the ADA for denial of dental treatment), the Court held that a woman who was HIV positive, but asymptomatic, was covered by the act because she was effectively precluded by her disease from having child-ren. The ADA defines a disability as an impairment that "substantially limits one or more of the major life activities," which, in the majority's view, clearly included reproduction.
Should the ADA be construed to protect people who cannot bear children, along with people who can't walk, see, hear, or breathe without assistance? If the primary purpose of the law is to end discrimination against the disabled, expanding their employment opportunities and access to public accommodations, it is ill-served by extending its reach to people who can't reproduce without treatment. Infertility may be a great personal trial, but it does not generally inspire economic discrimination or interfere with access to subways, sidewalks, elevators, or workplaces. Indeed, for women, childlessness is still a professional advantage, not a liability.
When the ADA was enacted, conservatives attacked it as liberal "victimism," offering a familiar and, in this case, rather perverse critique. The ADA is designed to help disabled people achieve self-sufficiency. Discrimination victimizes disabled people, consigning them to telethons; civil rights enable them. But expanding the definition of disability to include disappointments, like the inability to bear children, does seem to reflect a self-centered attraction to victimhood.
"I can do mostly everything--run, jump, skip," one infertility patient interviewed on National Public Radio explained in 1998. "But physically, we are disabled; we're diseased in a way because we can't procreate naturally." The enthusiasm with which people declare themselves diseased or otherwise dysfunctional is one of the more perverse legacies of popular therapies. If infertility is a disease, it is not a disease like, say, diabetes, cancer, or AIDS. It's not degenerative, and untreated, it won't kill you or impair your physical health and independence. It does not necessarily threaten your mental health either: Some people may be tormented by the inability to bear children, but others successfully adapt.
Finally, unlike most serious physical diseases, infertility is defined by cultural norms as well as science. There is not one objective standard of infertility; it is defined differently in different epidemiological studies. In practice, in our culture, you may be declared infertile after one year of unfruitful unprotected intercourse. Would we lower the incidence of this alleged disease, and the need for treatment, simply by increasing the definitional period? What if we declared people infertile only after two or three years of unprotected intercourse, instead of one?
Declaring infertility a disease does, however, have practical benefits--mandatory insurance coverage. Since the Supreme Court defined reproduction as a major life activity under the ADA, the Equal Employment Opportunity Commission has ruled in favor of a woman who charged her employer with discrimination for not providing infertility coverage. That case, Saks v. Franklin Covey Co., is now pending in federal court in New York. The employer's attorneys are appar-ently struggling to distinguish their case from Bragdon. HIV limits reproduction because its victims cannot bear children without running the risk of infecting them, a Franklin Covey attorney pointed out in a recent article in the New York Law Journal. "That is substantially different than holding that a condition that limits the ability to conceive is a disability," he argued cryptically.
But even if the federal courts by some such logic decline to extend the ADA to infertility, Congress and the state legislatures may require that insurers cover infertility treatments. Thirteen states already do so, and New York is currently considering a bill that would mandate coverage for some treatments; infertility insurance legislation has also been introduced in Congress. These laws do not involve the troublesome determination that infertility is a disability, but they do raise equally hard policy questions about our social and medical priorities.
In an ideal world of unlimited resources, only the meanspirited would deny coverage for infertility treatments, but in our world, we're forced to rate competing claims of suffering and injustice when we allocate funds: We prioritize. Infertility treatments are expensive and essentially elective, and the occasional traumas of infertility seem less than compelling when compared to the sufferings of Americans with no health insurance at all. "The real social justice question here is how to provide decent health care to the 40 to 50 million completely uninsured people in the United States and the other 50 million underinsured people," medical ethicist George Annas asserts. Annas, chair of the Health Law Department at the Boston University School of Public Health, adds, "This is a much higher-priority ethical and social justice issue than how to increase the private health insurance coverage people already have, to include infertility services."
It is also troubling to see legislators responding to the demands of the middle class for infertility treatments when they have disregarded the plight of poor women with children, who have been forced off welfare and into the work force and provided with little if any reliable day care. Indeed, recent welfare reforms have been aimed, in part, at deterring poor women from bearing children. If infertility is a disease, it's one that many Americans would like to inflict upon the poor. State and federal legislators may require private insurers to cover infertility treatments, but they are unlikely to extend similar benefits to Medicaid recipients.
It's worth stressing that public antagonism toward the fertile poor has a long history. Consider the early twentieth-century eugenics movement. By the 1930s, some 27 states had passed eugenics laws, pursuant to which over 12,000 people were sterilized. Sterilization movements tended to be overtly racist and discriminated against the poor. During the Depression, eugenicists proposed ameliorating poverty by sterilizing poor people. Some 40 years later, in the early 1970s, a lawsuit involving the coerced sterilization of two African-American girls revealed abuses in the Medicaid program. A federal court found that "an indefinite number of poor people" were sterilized "under the threat that various federally supported welfare benefits would be withdrawn unless they submitted to irreversible sterilization."
The contemporary movement for infertility coverage ought to be considered in the context of abuses like these. I'm not suggesting that middle-class people don't suffer and aren't appropriate subjects of compassion. I'm not necessarily opposed to mandatory infertility coverage and don't mean to characterize it as completely unaffordable: In Massachusetts, the additional cost of coverage is estimated at $1.71 per month (a figure that does not include the costs associated with multiple births resulting from treatment). Still, I'd be more sympathetic to the movement for infertility coverage if it weren't so difficult to reconcile with our rather punitive policies toward childbearing and child rearing by poor women, not to mention the neglect of children in foster care or the increasingly harsh treatment of children caught up in the criminal-justice system. Compassion, like justice, ought to be meted out equally. u
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