In a 5 to 4 decision, the U.S. Supreme Court ruled last summer that a woman infected with the human immunodeficiency virus (HIV) qualified as disabled under the Americans with Disabilities Act of 1990 (ADA). Observers say the decision may affect not only HIV patients, but also individuals suffering infertility problems -- and hence health plan sponsors and health care providers.

The majority opinion by Justice Kennedy said an HIV-positive woman -- with no symptoms of AIDS -- was disabled because having the virus substantially limited her ability to reproduce, and that reproduction is a major life activity covered by the ADA.

In his dissent, Chief Justice Rehnquist predicted that everyone with impaired ability to reproduce will be able to make a disability claim. This could involve seeking coverage for infertility treatments from insurers:

• In 1995, 7.1 percent of married couples with a wife of childbearing age were infertile -- meaning they could not conceive after 12 months of unprotected intercourse, reports the National Center for Health Statistics.
• More than six million women ages 15 to 44 experienced impaired fecundity in 1995.
• But only about 32 percent of all employer-sponsored health plans cover infertility services.

Among plans sponsored by large employers, infertility treatment services are covered by 59 percent of health maintenance organizations (HMOs), 44 percent of indemnity plans and 39 percent of preferred provider organizations (PPOs), according to a 1997 survey by William M. Mercer, Inc. Only 22 percent of the surveyed plans covered in vitro fertilization (IVF) -- the most common assisted reproductive technology. IVF is expensive -- with an estimated cost of an IVF birth at $66,667 to $114,286, depending on the number of procedures necessary.

The Court was unclear as to how far its decision reaches, since it made no explicit reference to assisted reproduction; but observers expect more litigation to ensue.

Source: Stephanie Limb, "HIV Ruling Has Potential to Make Infertility a Disability," Inside Medical Technology, September 1998.