II 

118TH CONGRESS 

2D SESSION S. 3612 

To prohibit the limitation of access to assisted reproductive technology, and 

all medical care surrounding such technology. 

IN THE SENATE OF THE UNITED STATES 

JANUARY 18, 2024 

Ms. DUCKWORTH (for herself, Ms. BALDWIN, Mrs. MURRAY, and Mrs. GILLIBRAND) introduced the following bill; which was read twice and referred 

to the Committee on Health, Education, Labor, and Pensions 

A BILL 

To prohibit the limitation of access to assisted reproductive 

technology, and all medical care surrounding such technology. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Access to Family 

5 Building Act’’. 

6 SEC. 2. DEFINITIONS. 

7 In this Act: 

8 (1) ASSISTED REPRODUCTIVE TECHNOLOGY.— 

9 The term ‘‘assisted reproductive technology’’ has the 

10 meaning given such term in section 8 of the Fertility 


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1 Clinic Success Rate and Certification Act of 1992 

2 (42 U.S.C. 263a–7(1)). 

3 (2) HEALTH CARE PROVIDER.—The term 

4 ‘‘health care provider’’ means any entity or indi5 vidual (including any physician, nurse practitioner, 

6 physician assistant, pharmacist, health care support 

7 personnel, and any other individual, as determined 

8 by the Secretary of Health and Human Services) 

9 that— 

10 (A) is engaged or seeks to engage in the 

11 delivery of assisted reproductive technology, in12 cluding through the provision of evidence-based 

13 information, counseling, referrals, or items and 

14 services that relate to, aid in, or provide fertility 

15 treatment; and 

16 (B) if required by State law to be licensed, 

17 certified, or otherwise authorized to engage in 

18 the delivery of such services— 

19 (i) is so licensed, certified, or other20 wise authorized; or 

21 (ii) would be so licensed, certified, or 

22 otherwise authorized but for the individ23 ual’s or entity’s past, present, or potential 

24 provision of assisted reproductive tech25 nology in accordance with section 4. 


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1 (3) PATIENT.—The term ‘‘patient’’ means any 

2 individual who receives or seeks to receive assisted 

3 reproductive technology services and evidence-based 

4 information, counseling, referrals, or items and serv5 ices that relate to, aid in, or provide fertility treat6 ment. 

7 (4) STATE.—The term ‘‘State’’ includes each of 

8 the 50 States, the District of Columbia, Puerto Rico, 

9 each territory and possession of the United States, 

10 and any political subdivision thereof. 

11 SEC. 3. FINDINGS AND PURPOSE. 

12 (a) FINDINGS.—Congress finds the following: 

13 (1) Congress has the authority to enact this Act 

14 to protect access to fertility treatments pursuant 

15 to— 

16 (A) its powers under the Commerce Clause 

17 of section 8 of article I of the Constitution of 

18 the United States; 

19 (B) its powers under section 5 of the Four20 teenth Amendment to the Constitution of the 

21 United States to enforce the provisions of sec22 tion 1 of the Fourteenth Amendment; and 

23 (C) its powers under the necessary and 

24 proper clause of section 8 of article I of the 

25 Constitution of the United States. 


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1 (2) Congress has used its authority in the past 

2 to protect and expand access to fertility treatment, 

3 information, products, and services. 

4 (b) PURPOSE.—It is the purpose of this Act to permit 

5 health care providers to provide, and for patients to re6 ceive, assisted reproductive technology services without 

7 limitations or requirements that— 

8 (1) are more burdensome than limitations or re9 quirements imposed on medically comparable proce10 dures; 

11 (2) do not significantly advance reproductive 

12 health or the safety of such services; or 

13 (3) unduly restrict access to such services. 

14 SEC. 4. ACCESS TO ASSISTED REPRODUCTIVE TECH15 NOLOGY. 

16 (a) GENERAL RULE.— 

17 (1) INDIVIDUAL RIGHTS.—An individual has a 

18 statutory right under this Act, including without 

19 prohibition or unreasonable limitation or interference 

20 (such as due to financial cost or detriment to the in21 dividual’s health, including mental health), to— 

22 (A) access assisted reproductive tech23 nology; 

24 (B) continue or complete an ongoing as25 sisted reproductive technology treatment or proVerDate Sep 11 2014 02:16 Jan 25, 2024 Jkt 049200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S3612.IS S3612

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1 cedure pursuant to a written plan or agreement 

2 with a health care provider; and 

3 (C) retain all rights regarding the use or 

4 disposition of reproductive genetic materials, in5 cluding gametes, subject to subsection (c). 

6 (2) HEALTH CARE PROVIDER RIGHTS.—A 

7 health care provider has a statutory right under this 

8 Act to— 

9 (A) perform or assist with the performance 

10 of assisted reproductive technology treatments 

11 or procedures; and 

12 (B) provide or assist with the provision of 

13 evidence-based information related to assisted 

14 reproductive technology. 

15 (3) INSURANCE PROVIDER RIGHTS.—A health 

16 insurance provider has a statutory right under this 

17 Act to cover assisted reproductive technology treat18 ments or procedures. 

19 (b) ENFORCEMENT.— 

20 (1) THE ATTORNEY GENERAL.—The Attorney 

21 General may commence a civil action on behalf of 

22 the United States against any State, local munici23 pality, or against any government official, individual, 

24 or entity that enacts, implements, or enforces a limi25 tation or requirement that prohibits, unreasonably 


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1 limits, or interferes with subsection (a). The court 

2 shall hold unlawful and set aside the limitation or 

3 requirement if it is in violation of subsection (a). 

4 (2) PRIVATE RIGHT OF ACTION.—Any indi5 vidual or entity adversely affected by an alleged vio6 lation of subsection (a) may commence a civil action 

7 against any State or local government official that 

8 enacts, implements, or enforces a limitation or re9 quirement that violates subsection (a). The court 

10 shall hold unlawful and enjoin the limitation or re11 quirement if it is in violation of subsection (a). 

12 (3) HEALTH CARE PROVIDER.—A health care 

13 provider may commence an action for relief on its 

14 own behalf, on behalf of the provider’s staff, or on 

15 behalf of the provider’s patients who are or may be 

16 adversely affected by an alleged violation of sub17 section (a). 

18 (4) EQUITABLE RELIEF.—In any action under 

19 this section, the court may award appropriate equi20 table relief, including temporary, preliminary, or per21 manent injunctive relief. 

22 (5) COSTS.—In any action under this section, 

23 the court shall award costs of litigation, as well as 

24 reasonable attorney’s fees, to any prevailing plain25 tiff. A plaintiff shall not be liable to a defendant for 


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1 costs or attorney’s fees in any non-frivolous action 

2 under this section. 

3 (6) JURISDICTION.—The district courts of the 

4 United States shall have jurisdiction over pro5 ceedings under this section and shall exercise the 

6 same without regard to whether the party aggrieved 

7 shall have exhausted any administrative or other 

8 remedies that may be provided for by law. 

9 (7) RIGHT TO REMOVE.—Any party shall have 

10 a right to remove an action brought under this sub11 section to the district court of the United States for 

12 the district and division embracing the place where 

13 such action is pending. An order remanding the case 

14 to the State court from which it was removed under 

15 this paragraph is immediately reviewable by appeal 

16 or otherwise. 

17 (c) STATE REGULATION OF MEDICINE.—Nothing in 

18 this Act shall be construed to prohibit enforcement of 

19 health and safety regulations a State or local municipality 

20 requires of medical facilities or providers, if such regula21 tions— 

22 (1) advance the safety of health care services or 

23 the health of patients; and 

24 (2) that safety objective cannot be advanced by 

25 a less restrictive alternative measure or action. 


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1 (d) INSURANCE.—Nothing in this Act shall be con2 strued to modify, supersede, or otherwise affect any State 

3 law regarding insurance coverage of assisted reproductive 

4 technologies and treatments. 

5 (e) REGULATIONS.—Not later than 1 year after the 

6 date of enactment of this Act, the Secretary of Health and 

7 Human Services shall promulgate regulations to carry out 

8 this section. 

9 SEC. 5. APPLICABILITY AND PREEMPTION. 

10 (a) IN GENERAL.— 

11 (1) GENERAL APPLICATION.—This Act super12 sedes and applies to the law of the Federal Govern13 ment and each State government, and the implemen14 tation of such law, whether statutory, common law, 

15 or otherwise, and whether adopted before or after 

16 the date of enactment of this Act, and neither the 

17 Federal Government nor any State government shall 

18 administer, implement, or enforce any law, rule, reg19 ulation, standard, or other provision having the force 

20 and effect of law that conflicts with any provision of 

21 this Act, notwithstanding any other provision of 

22 Federal law, including the Religious Freedom Res23 toration Act of 1993 (42 U.S.C. 2000bb et seq.). 

24 (2) SUBSEQUENTLY ENACTED FEDERAL LEGIS25 LATION.—Federal statutory law adopted after the 


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1 date of the enactment of this Act is subject to this 

2 Act unless such law explicitly excludes such applica3 tion by reference to this Act. 

4 (b) DEFENSE.—In any cause of action against an in5 dividual or entity who is subject to a limitation or require6 ment that violates this Act, in addition to the remedies 

7 specified in section 4(b), this Act shall also apply to, and 

8 may be raised as a defense by, such an individual or entity. 

9 SEC. 6. SEVERABILITY. 

10 If any provision of this Act, or the application of such 

11 provision to any person, entity, government, or cir12 cumstance is held to be unconstitutional, the remainder 

13 of this Act, or the application of such provision to all other 

14 persons, entities, governments, or circumstances shall not 

15 be affected thereby. 

Æ 


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