II 

113TH CONGRESS 

1ST SESSION S. 881 

To amend the Internal Revenue Code of 1986 to provide an income tax 

credit for the costs of certain infertility treatments, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

MAY 7, 2013 

Mrs. GILLIBRAND (for herself and Mr. SCHATZ) introduced the following bill; 

which was read twice and referred to the Committee on Finance 

A BILL 

To amend the Internal Revenue Code of 1986 to provide 

an income tax credit for the costs of certain infertility 

treatments, and for other purposes. 

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 ‘‘Family Act of 2013’’. 

5 SEC. 2. FINDINGS. 

6 Congress finds the following: 

7 (1) The American Society of Reproductive Med8 icine recognizes infertility as a disease, and the Cen9 ters for Disease Control and Prevention have de10 scribed infertility as an emerging public health priVerDate Mar 15 2010 04:06 May 08, 2013 Jkt 029200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S881.IS S881

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1 ority in the United States. Globally, the World 

2 Health Organization also formally recognizes infer3 tility as a disease. 

4 (2) According to the Centers for Disease Con5 trol and Prevention, approximately 3,000,000 Amer6 icans suffer from infertility. 

7 (3) A portion of those 3,000,000 people are 

8 cancer survivors who were diagnosed as infants, chil9 dren, or young adults. Their treatments included 

10 chemotherapy, radiation, and surgery which have led 

11 to irreparable damage to their reproductive systems. 

12 (4) Military families notably are also impacted 

13 by infertility as a result of lower extremity war inju14 ries arising from the perils of modern warfare. For 

15 active duty individuals, frequent changes in perma16 nent duty station, combat deployments, and training 

17 rotations complicate access to fertility treatments. In 

18 addition, active duty individuals or veterans have no 

19 coverage for in vitro fertilization (IVF) through their 

20 military health insurance and must pay out of pock21 et for those expenses, even within military treatment 

22 facilities. 

23 (5) For many, the cost of treatment for the dis24 ease of infertility is prohibitive. According to the 

25 American Society for Reproductive Medicine, the 


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1 cost per cycle of IVF is approximately $12,500, and 

2 on average couples require at least 2 cycles. Many 

3 couples have to choose between their desire to estab4 lish a family and their future financial well-being. 

5 (6) Medical insurance coverage for infertility 

6 treatments is sparse and inconsistent at the State 

7 level. Only 8 States have passed laws to require com8 prehensive infertility coverage, and under those 

9 State laws employer-sponsored plans are exempt; 

10 therefore, coverage for treatments such as IVF is 

11 limited. According to Mercer’s 2005 National Survey 

12 of Employer-Sponsored Health Plans, IVF was vol13 untarily covered by 19 percent of large employer14 sponsored health plans and only 11 percent of small 

15 employer-sponsored health plans. Even in States 

16 with coverage mandates, out-of-pocket expenses for 

17 these treatments are significant. 

18 (7) According to the latest National Survey of 

19 Family Growth, African-American and Hispanic 

20 women are more likely to be infertile than Caucasian 

21 women, yet studies indicate that they are less likely 

22 to use infertility services. 

23 SEC. 3. CREDIT FOR CERTAIN INFERTILITY TREATMENTS. 

24 (a) IN GENERAL.—Subpart A of part IV of sub25 chapter A of chapter 1 of the Internal Revenue Code of 


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1 1986 is amended by inserting before section 24 the fol2 lowing new section: 

3 ‘‘SEC. 23A. CREDIT FOR CERTAIN INFERTILITY TREAT4 MENTS. 

5 ‘‘(a) ALLOWANCE OF CREDIT.—In the case of an eli6 gible individual, there shall be allowed as a credit against 

7 the tax imposed by this chapter for the taxable year an 

8 amount equal to 50 percent of the qualified infertility 

9 treatment expenses paid or incurred during the taxable 

10 year. 

11 ‘‘(b) LIMITATIONS.— 

12 ‘‘(1) DOLLAR LIMITATION.—The amount of the 

13 credit under subsection (a) for any taxable year shall 

14 not exceed the excess (if any) of— 

15 ‘‘(A) the dollar amount in effect under sec16 tion 23(b)(1) for the taxable year, over 

17 ‘‘(B) the aggregate amount of the credits 

18 allowed under subsection (a) for all preceding 

19 taxable years. 

20 ‘‘(2) INCOME LIMITATION.— 

21 ‘‘(A) IN GENERAL.—The amount otherwise 

22 allowable as a credit under subsection (a) for 

23 any taxable year (determined after the applica24 tion of paragraph (1) and without regard to 

25 this paragraph and subsection (c)) shall be reVerDate Mar 15 2010 04:06 May 08, 2013 Jkt 029200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S881.IS S881

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1 duced (but not below zero) by an amount which 

2 bears the same ratio to the amount so allowable 

3 as— 

4 ‘‘(i) the amount (if any) by which the 

5 taxpayer’s adjusted gross income exceeds 

6 the dollar amount in effect under clause (i) 

7 of section 23(b)(2)(A); bears to 

8 ‘‘(ii) $40,000. 

9 ‘‘(B) DETERMINATION OF ADJUSTED

10 GROSS INCOME.—For purposes of subparagraph 

11 (A), adjusted gross income shall be determined 

12 without regard to sections 911, 931, and 933. 

13 ‘‘(3) DENIAL OF DOUBLE BENEFIT.— 

14 ‘‘(A) IN GENERAL.—No credit shall be al15 lowed under subsection (a) for any expense for 

16 which a deduction or credit is taken under any 

17 other provision of this chapter. 

18 ‘‘(B) GRANTS.—No credit shall be allowed 

19 under subsection (a) for any expense to the ex20 tent that reimbursement or other funds in com21 pensation for such expense are received under 

22 any Federal, State, or local program. 

23 ‘‘(C) INSURANCE REIMBURSEMENT.—No 

24 credit shall be allowed under subsection (a) for 

25 any expense to the extent that payment for 


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1 such expense is made, or reimbursement for 

2 such expense is received, under any insurance 

3 policy. 

4 ‘‘(4) LIMITATION BASED ON AMOUNT OF

5 TAX.—In the case of a taxable year to which section 

6 26(a)(2) does not apply, the credit allowed under 

7 subsection (a) for any taxable year shall not exceed 

8 the excess of— 

9 ‘‘(A) the sum of the regular tax liability 

10 (as defined in section 26(b)) plus the tax im11 posed by section 55; over 

12 ‘‘(B) the sum of the credits allowable 

13 under this subpart (other than this section) and 

14 section 27 for the taxable year. 

15 ‘‘(c) CARRYFORWARDS OF UNUSED CREDIT.— 

16 ‘‘(1) RULE FOR YEARS IN WHICH ALL PER17 SONAL CREDITS ALLOWED AGAINST REGULAR AND

18 ALTERNATIVE MINIMUM TAX.—In the case of a tax19 able year to which section 26(a)(2) applies, if the 

20 credit allowable under subsection (a) exceeds the 

21 limitation imposed by section 26(a)(2) for such tax22 able year reduced by the sum of the credits allowable 

23 under this subpart (other than this section), such 

24 excess shall be carried to the succeeding taxable year 


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1 and added to the credit allowable under subsection 

2 (a) for such succeeding taxable year. 

3 ‘‘(2) RULE FOR OTHER YEARS.—In the case of 

4 a taxable year to which section 26(a)(2) does not 

5 apply, if the credit allowable under subsection (a) 

6 exceeds the limitation imposed by subsection (b)(4) 

7 for such taxable year, such excess shall be carried to 

8 the succeeding taxable year and added to the credit 

9 allowable under subsection (a) for such succeeding 

10 taxable year. 

11 ‘‘(3) LIMITATION.—No credit may be carried 

12 forward under this subsection to any taxable year 

13 after the 5th taxable year after the taxable year in 

14 which the credit arose. For purposes of the pre15 ceding sentence, credits shall be treated as used on 

16 a first-in first-out basis. 

17 ‘‘(d) QUALIFIED INFERTILITY TREATMENT EX18 PENSES.—For purposes of this section— 

19 ‘‘(1) IN GENERAL.—The term ‘qualified infer20 tility treatment expenses’ means amounts paid or in21 curred for the treatment of infertility via in vitro 

22 fertilization if such treatment is— 

23 ‘‘(A) provided by a licensed physician, li24 censed surgeon, or other licensed medical prac25 titioner, and 


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1 ‘‘(B) administered with respect to a diag2 nosis of infertility by a physician licensed in the 

3 United States. 

4 ‘‘(2) TREATMENTS IN ADVANCE OF INFER5 TILITY ARISING FROM MEDICAL TREATMENTS.—In 

6 the case of expenses incurred in advance of a diag7 nosis of infertility for fertility preservation proce8 dures which are conducted prior to medical proce9 dures that, as determined by a physician licensed in 

10 the United States, may cause involuntary infertility 

11 or sterilization, such expenses shall be treated as 

12 qualified infertility treatment expenses— 

13 ‘‘(A) notwithstanding paragraph (1)(B), 

14 and 

15 ‘‘(B) without regard to whether a diagnosis 

16 of infertility subsequently results. 

17 Expenses for fertility preservation procedures in ad18 vance of a procedure designed to result in infertility 

19 or sterilization shall not be treated as qualified infer20 tility treatment expenses. 

21 ‘‘(3) INFERTILITY.—The term ‘infertility’ 

22 means the inability to conceive or to carry a preg23 nancy to live birth, including iatrogenic infertility re24 sulting from medical treatments such as chemo25 therapy, radiation or surgery. Such term does not 


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1 include infertility or sterilization resulting from a 

2 procedure designed for such purpose. 

3 ‘‘(e) ELIGIBLE INDIVIDUAL.—For purposes of this 

4 section, the term ‘eligible individual’ means an indi5 vidual— 

6 ‘‘(1) who has been diagnosed with infertility by 

7 a physician licensed in the United States, or 

8 ‘‘(2) with respect to whom a physician licensed 

9 in the United States has made the determination de10 scribed in subsection (d)(2). 

11 ‘‘(f) FILING REQUIREMENTS.—Married taxpayers 

12 must file joint returns. Rules similar to the rules of para13 graphs (2), (3), and (4) of section 21(e) shall apply for 

14 purposes of this section.’’. 

15 (b) CONFORMING AMENDMENTS.— 

16 (1) The table of sections for subpart A of part 

17 IV of subchapter A of chapter 1 of the Internal Rev18 enue Code of 1986 is amended by inserting before 

19 the item relating to section 24 the following new 

20 item: 

‘‘Sec. 23A. Credit for certain infertility treatments.’’. 

21 (2) Section 23(c)(1) of such Code is amended 

22 by striking ‘‘25D’’ and inserting ‘‘23A, 25D,’’. 

23 (3) Section 25(e)(1)(C) of such Code is amend24 ed by inserting ‘‘23A,’’ before ‘‘25D,’’. 


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1 (4) Section 1400C(d) of such Code is amended 

2 by striking ‘‘section 25D’’ and inserting ‘‘sections 

3 23A and 25D’’. 

4 (c) EFFECTIVE DATE.—The amendments made by 

5 this section shall apply to taxable years beginning after 

6 December 31, 2013. 

Æ 


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