II 

117TH CONGRESS 

1ST SESSION S. 2352 

To require health insurance coverage for the treatment of infertility. 

IN THE SENATE OF THE UNITED STATES 

JULY 15, 2021 

Mr. BOOKER (for himself, Mr. MENENDEZ, 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 require health insurance coverage for the treatment of 

infertility. 

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 Infertility 

5 Treatment and Care Act’’. 

6 SEC. 2. FINDINGS. 

7 Congress finds as follows: 

8 (1) Infertility is a medical disease recognized by 

9 the World Health Organization, the American Soci10 ety for Reproductive Medicine, and the American 


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1 Medical Association that affects men and women 

2 equally. 

3 (2) According to the Centers for Disease Con4 trol and Prevention, 1 in 8 couples have difficulty 

5 getting pregnant or sustaining a pregnancy. 

6 (3) Infertility affects a broad spectrum of pro7 spective parents. No matter what race, religion, sex8 ual orientation, or economic status one is, infertility 

9 does not discriminate. 

10 (4) According to the Centers for Disease Con11 trol and Prevention, 11 percent of women in the 

12 United States between the ages of 15 and 44 have 

13 difficulty getting pregnant or staying pregnant. 

14 Similarly, 9 percent of men in the United States be15 tween the ages of 15 and 44 experience infertility. 

16 (5) Infertility disproportionately affects individ17 uals with particular health complications. For cancer 

18 patients and others who must undergo treatments 

19 such as chemotherapy, radiation therapy, hormone 

20 therapy, or surgery that are likely to harm the re21 productive system and organs, fertility preservation 

22 becomes necessary. 

23 (6) Leading causes of infertility include chronic 

24 conditions and diseases of the endocrine or metabolic 

25 systems, such as primary ovarian insufficiency, polyVerDate Sep 11 2014 23:29 Jul 23, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S2352.IS S2352

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1 cystic ovarian syndrome, endometriosis, thyroid dis2 orders, menstrual cycle defects, autoimmune dis3 orders, hormonal imbalances, testicular disorders, 

4 and urological health issues. Other causes include 

5 structural problems or blockages within the repro6 ductive system, exposure to infectious diseases, occu7 pational or environmental hazards, or genetic influ8 ences. 

9 (7) Recent improvements in therapy and 

10 cryopreservation make pregnancy possible for more 

11 people than in past years. 

12 (8) Like all other diseases, infertility and its 

13 treatments should be covered by health insurance. 

14 (9) A 2017 national survey of employer-spon15 sored health plans found that 44 percent of employ16 ers with at least 500 employees did not cover infer17 tility services, and 25 percent of companies with 

18 20,000 or more employees did not cover infertility 

19 services. 

20 (10) Coverage for infertility services under 

21 State Medicaid programs is limited. The Medicaid 

22 programs of only 5 States provide diagnostic testing 

23 for women and men in all of their program eligibility 

24 pathways; the Medicaid program of only one State 

25 provides coverage for certain medications for women 


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1 experiencing infertility; and no State Medicaid pro2 grams cover intrauterine insemination or in vitro 

3 fertilization. 

4 (11) States that do not require private insur5 ance coverage of assisted reproductive technology 

6 have higher rates of multiple births. 

7 (12) The ability to have a family should not be 

8 denied to anyone on account of a lack of insurance 

9 coverage for medically necessary treatment. 

10 SEC. 3. STANDARDS RELATING TO BENEFITS FOR TREAT11 MENT OF INFERTILITY AND PREVENTION OF 

12 IATROGENIC INFERTILITY. 

13 (a) IN GENERAL.—Part A of title XXVII of the Pub14 lic Health Service Act (42 U.S.C. 300gg et seq.) is amend15 ed by inserting after section 2729 the following: 

16 ‘‘SEC. 2729A. STANDARDS RELATING TO BENEFITS FOR 

17 TREATMENT OF INFERTILITY AND PREVEN18 TION OF IATROGENIC INFERTILITY. 

19 ‘‘(a) IN GENERAL.—A group health plan or a health 

20 insurance issuer offering group or individual health insur21 ance coverage shall ensure that such plan or coverage pro22 vides coverage for— 

23 ‘‘(1) the treatment of infertility, including non24 experimental assisted reproductive technology proceVerDate Sep 11 2014 23:29 Jul 23, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S2352.IS S2352

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1 dures, if such plan or coverage provides coverage for 

2 obstetrical services; and 

3 ‘‘(2) standard fertility preservation services 

4 when a medically necessary treatment may directly 

5 or indirectly cause iatrogenic infertility. 

6 ‘‘(b) DEFINITIONS.—In this section: 

7 ‘‘(1) the term ‘assisted reproductive technology’ 

8 means treatments or procedures that involve the 

9 handling of human egg, sperm, and embryo outside 

10 of the body with the intent of facilitating a preg11 nancy, including in vitro fertilization, egg, embryo, 

12 or sperm cryopreservation, egg or embryo donation, 

13 and gestational surrogacy; 

14 ‘‘(2) the term ‘infertility’ means a disease, char15 acterized by the failure to establish a clinical preg16 nancy— 

17 ‘‘(A) after 12 months of regular, unpro18 tected sexual intercourse; or 

19 ‘‘(B) due to a person’s incapacity for re20 production either as an individual or with his or 

21 her partner, which may be determined after a 

22 period of less than 12 months of regular, un23 protected sexual intercourse, or based on med24 ical, sexual and reproductive history, age, phys25 ical findings, or diagnostic testing; and 


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1 ‘‘(3) the term ‘iatrogenic infertility’ means an 

2 impairment of fertility due to surgery, radiation, 

3 chemotherapy, or other medical treatment. 

4 ‘‘(c) REQUIRED COVERAGE.— 

5 ‘‘(1) COVERAGE FOR INFERTILITY.—Subject to 

6 paragraph (3), a group health plan and a health in7 surance issuer offering group or individual health in8 surance coverage that includes coverage for obstet9 rical services shall provide coverage for treatment of 

10 infertility determined appropriate by the treating 

11 physician, including, as appropriate, ovulation induc12 tion, egg retrieval, sperm retrieval, artificial insemi13 nation, in vitro fertilization, genetic screening, 

14 intracytoplasmic sperm injection, and any other non15 experimental treatment, as determined by the Sec16 retary in consultation with appropriate professional 

17 and patient organizations such as the American So18 ciety for Reproductive Medicine, RESOLVE: The 

19 National Infertility Association, and the American 

20 College of Obstetricians and Gynecologists. 

21 ‘‘(2) COVERAGE FOR IATROGENIC INFER22 TILITY.—A group health plan and a health insur23 ance issuer offering group or individual health insur24 ance coverage shall provide coverage of fertility pres25 ervation services for individuals who undergo mediVerDate Sep 11 2014 23:29 Jul 23, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S2352.IS S2352

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1 cally necessary treatment that may cause iatrogenic 

2 infertility, as determined by the treating physician, 

3 including cryopreservation of gametes and other pro4 cedures, as determined by the Secretary, consistent 

5 with established medical practices and professional 

6 guidelines published by professional medical organi7 zations, including the American Society of Clinical 

8 Oncology and the American Society for Reproductive 

9 Medicine. 

10 ‘‘(3) LIMITATION ON COVERAGE OF ASSISTED

11 REPRODUCTIVE TECHNOLOGY.—A group health plan 

12 and a health insurance issuer offering group or indi13 vidual health insurance coverage shall provide cov14 erage for assisted reproductive technology as re15 quired under paragraph (1) if— 

16 ‘‘(A) the individual is unable to bring a 

17 pregnancy to a live birth through minimally 

18 invasive infertility treatments, as determined 

19 appropriate by the treating physician, with con20 sideration given to participant’s or beneficiary’s 

21 specific diagnoses or condition for which cov22 erage is available under the plan or coverage; 

23 and 

24 ‘‘(B) the treatment is performed at a med25 ical facility that— 


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1 ‘‘(i) conforms to the standards of the 

2 American Society for Reproductive Medi3 cine and the Society for Assisted Repro4 ductive Technology; and 

5 ‘‘(ii) is in compliance with any stand6 ards set by an appropriate Federal agency. 

7 ‘‘(d) LIMITATION.—Cost-sharing, including deducti8 bles and coinsurance, or other limitations for infertility 

9 and services to prevent iatrogenic infertility may not be 

10 imposed with respect to the services required to be covered 

11 under subsection (c) to the extent that such cost-sharing 

12 exceeds the cost-sharing applied to similar services under 

13 the group health plan or health insurance coverage or such 

14 other limitations are different from limitations imposed 

15 with respect to such similar services. 

16 ‘‘(e) PROHIBITIONS.—A group health plan and a 

17 health insurance issuer offering group or individual health 

18 insurance coverage may not— 

19 ‘‘(1) provide incentives (monetary or otherwise) 

20 to a participant or beneficiary to encourage such 

21 participant or beneficiary not to be provided infer22 tility treatments or fertility preservation services to 

23 which such participant or beneficiary is entitled 

24 under this section or to providers to induce such 


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1 providers not to provide such treatments to qualified 

2 participants or beneficiaries; 

3 ‘‘(2) prohibit a provider from discussing with a 

4 participant or beneficiary infertility treatments or 

5 fertility preservation technology or medical treat6 ment options relating to this section; or 

7 ‘‘(3) penalize or otherwise reduce or limit the 

8 reimbursement of a provider because such provider 

9 provided infertility treatments or fertility preserva10 tion services to a qualified participant or beneficiary 

11 in accordance with this section. 

12 ‘‘(f) RULE OF CONSTRUCTION.—Nothing in this sec13 tion shall be construed to require a participant or bene14 ficiary to undergo infertility treatments or fertility preser15 vation services. 

16 ‘‘(g) NOTICE.—A group health plan and a health in17 surance issuer offering group or individual health insur18 ance coverage shall provide notice to each participant and 

19 beneficiary under such plan regarding the coverage re20 quired by this section in accordance with regulations pro21 mulgated by the Secretary. Such notice shall be in writing 

22 and prominently positioned in any literature or cor23 respondence made available or distributed by the plan or 

24 issuer and shall be transmitted— 


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1 ‘‘(1) in the next mailing made by the plan or 

2 issuer to the participant or beneficiary; 

3 ‘‘(2) as part of any yearly informational packet 

4 sent to the participant or beneficiary; or 

5 ‘‘(3) not later than January 1, 2022, 

6 whichever is earlier. 

7 ‘‘(h) LEVEL AND TYPE OF REIMBURSEMENTS.— 

8 Nothing in this section shall be construed to prevent a 

9 group health plan or a health insurance issuer offering 

10 group or individual health insurance coverage from negoti11 ating the level and type of reimbursement with a provider 

12 for care provided in accordance with this section.’’. 

13 (b) CONFORMING AMENDMENT.—Section 2724(c) of 

14 the Public Health Service Act (42 U.S.C. 300gg–23(c)) 

15 is amended by striking ‘‘section 2704’’ and inserting ‘‘sec16 tions 2704 and 2708’’. 

17 (c) EFFECTIVE DATES.— 

18 (1) IN GENERAL.—The amendments made by 

19 subsections (a) and (b) shall apply for plan years be20 ginning on or after the date that is 6 months after 

21 the date of enactment of this Act. 

22 (2) COLLECTIVE BARGAINING EXCEPTION.— 

23 (A) IN GENERAL.—In the case of a group 

24 health plan maintained pursuant to one or more 

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1 ployee representatives and one or more employ2 ers ratified before the date of enactment of this 

3 Act, the amendments made by subsection (a) 

4 shall not apply to plan years beginning before 

5 the later of— 

6 (i) the date on which the last collec7 tive bargaining agreements relating to the 

8 plan terminates (determined without re9 gard to any extension thereof agreed to 

10 after the date of enactment of this Act); or 

11 (ii) the date occurring 6 months after 

12 the date of the enactment of this Act. 

13 (B) CLARIFICATION.—For purposes of 

14 subparagraph (A), any plan amendment made 

15 pursuant to a collective bargaining agreement 

16 relating to the plan which amends the plan sole17 ly to conform to any requirement added by sub18 section (a) shall not be treated as a termination 

19 of such collective bargaining agreement. 

20 SEC. 4. FEDERAL EMPLOYEES HEALTH BENEFITS PRO21 GRAM. 

22 (a) IN GENERAL.—Section 8902 of title 5, United 

23 States Code, is amended by adding at the end the fol24 lowing: 


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1 ‘‘(q)(1) In this subsection, the terms ‘infertility’ and 

2 ‘iatrogenic infertility’ have the meanings given those terms 

3 in section 2729A of the Public Health Service Act. 

4 ‘‘(2) A contract under this chapter shall provide, in 

5 a manner consistent with section 2729A of the Public 

6 Health Service Act, coverage for— 

7 ‘‘(A) the diagnosis and treatment of infertility, 

8 including nonexperimental assisted reproductive 

9 technology procedures, if that contract covers obstet10 rical benefits; and 

11 ‘‘(B) standard fertility preservation services 

12 when a medically necessary treatment may directly 

13 or indirectly cause iatrogenic infertility. 

14 ‘‘(3) Coverage for the diagnosis or treatment of infer15 tility and fertility preservation services under a health ben16 efits plan described in section 8903 or 8903a may not be 

17 subject to any copayment or deductible greater than the 

18 copayment or deductible, respectively, applicable to obstet19 rical benefits under the plan. 

20 ‘‘(4) Subsection (m)(1) shall not, with respect to a 

21 contract under this chapter, prevent the inclusion of any 

22 terms that, under paragraph (2) of this subsection, are 

23 required by reason of section 2729A of the Public Health 

24 Service Act.’’. 


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1 (b) EFFECTIVE DATE.—The amendment made by 

2 subsection (a) shall apply with respect to— 

3 (1) any contract entered into or renewed for a 

4 contract year beginning on or after the date that is 

5 180 days after the date of enactment of this Act; 

6 and 

7 (2) any health benefits plan offered under a 

8 contract described in paragraph (1). 

9 SEC. 5. BENEFITS FOR TREATMENT OF INFERTILITY AND 

10 PREVENTION OF IATROGENIC INFERTILITY 

11 UNDER THE TRICARE PROGRAM. 

12 (a) IN GENERAL.—Chapter 55 of title 10, United 

13 States Code, is amended by adding at the end the fol14 lowing new section: 

15 ‘‘§ 1110c. Obstetrical and infertility benefits 

16 ‘‘(a) IN GENERAL.—Any health care plan under this 

17 chapter shall provide, in a manner consistent with section 

18 2729A of the Public Health Service Act— 

19 ‘‘(1) coverage for the diagnosis and treatment 

20 of infertility, including nonexperimental assisted re21 productive technology procedures, if such plan covers 

22 obstetrical benefits; and 

23 ‘‘(2) coverage for standard fertility preservation 

24 services when a medically necessary treatment may 

25 directly or indirectly cause iatrogenic infertility. 


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1 ‘‘(b) COPAYMENT.—The Secretary of Defense shall 

2 establish cost-sharing requirements for the coverage of di3 agnosis and treatment of infertility and fertility preserva4 tion services described in subsection (a) that are consistent 

5 with the cost-sharing requirements applicable to health 

6 plans and health insurance coverage under section 

7 2729A(d) of the Public Health Service Act. 

8 ‘‘(c) REGULATIONS.—The Secretary of Defense shall 

9 prescribe any regulations necessary to carry out this sec10 tion. 

11 ‘‘(d) DEFINITIONS.—In this section, the terms ‘as12 sisted reproductive technology’, ‘iatrogenic infertility’, and 

13 ‘infertility’ have the meanings given those terms in section 

14 2729A of the Public Health Service Act.’’. 

15 (b) CLERICAL AMENDMENT.—The table of sections 

16 at the beginning of chapter 55 of such title is amended 

17 by adding at the end the following new item: 

‘‘1110c. Obstetrical and infertility benefits.’’. 

18 SEC. 6. TREATMENT OF INFERTILITY AND PREVENTION OF 

19 IATROGENIC INFERTILITY FOR VETERANS 

20 AND SPOUSES OR PARTNERS OF VETERANS. 

21 (a) IN GENERAL.—Subchapter II of chapter 17 of 

22 title 38, United States Code, is amended by adding at the 

23 end the following new section: 


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1 ‘‘§ 1720K. Infertility treatment for veterans and 

2 spouses or partners of veterans. 

3 ‘‘(a) IN GENERAL.—The Secretary shall furnish 

4 treatment for infertility and fertility preservation services, 

5 including through the use of assisted reproductive tech6 nology, to a veteran or a spouse or partner of a veteran 

7 if the veteran, and the spouse or partner of the veteran, 

8 as applicable, apply jointly for such treatment through a 

9 process prescribed by the Secretary for purposes of this 

10 section. 

11 ‘‘(b) DEFINITIONS.—In this section, the terms ‘as12 sisted reproductive technology’ and ‘infertility’ have the 

13 meanings given those terms in section 2729A of the Public 

14 Health Service Act.’’. 

15 (b) CLERICAL AMENDMENT.—The table of sections 

16 at the beginning of subchapter II of chapter 17 of such 

17 title is amended by inserting after the item relating to sec18 tion 1720J the following new item: 

‘‘1720K. Infertility treatment for veterans and spouses or partners of veterans.’’. 

19 (c) REGULATIONS.—Not later than 18 months after 

20 the date of the enactment of this Act, the Secretary of 

21 Veterans Affairs shall prescribe regulations to carry out 

22 section 1720K of title 38, United States Code, as added 

23 by subsection (a). 


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1 SEC. 7. REQUIREMENT FOR STATE MEDICAID PLANS TO 

2 PROVIDE MEDICAL ASSISTANCE FOR TREAT3 MENT OF INFERTILITY AND PREVENTION OF 

4 IATROGENIC INFERTILITY. 

5 (a) IN GENERAL.—Section 1905 of the Social Secu6 rity Act (42 U.S.C. 1396d) is amended— 

7 (1) in subsection (a)(4)— 

8 (A) by striking ‘‘; and (D)’’ and inserting 

9 ‘‘; (D)’’; 

10 (B) by striking ‘‘; and (E)’’ and inserting 

11 ‘‘; (E)’’; 

12 (C) by striking ‘‘; and (F)’’ and inserting 

13 ‘‘; (F)’’; and 

14 (D) by inserting before the semicolon at 

15 the end the following: ‘‘; and (G) services and 

16 supplies to treat infertility and prevent iatro17 genic infertility (as such terms are defined in 

18 section 2729A(b) of the Public Health Service 

19 Act) in accordance with subsection (jj)’’; and 

20 (2) by adding at the end the following new sub21 section: 

22 ‘‘(jj) REQUIREMENTS FOR COVERAGE OF INFER23 TILITY TREATMENT AND PREVENTION OF IATROGENIC

24 INFERTILITY.—For purposes of subsection (a)(4)(G), a 

25 State shall ensure that the medical assistance provided 

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1 ment of infertility and fertility preservation services com2 plies with the requirements and limitations of section 

3 2729A(c) of the Public Health Service Act in the same 

4 manner as such requirements and limitations apply to 

5 health insurance coverage offered by a group health plan 

6 or health insurance issuer.’’. 

7 (b) NO COST SHARING FOR INFERTILITY TREAT8 MENT.— 

9 (1) IN GENERAL.—Subsections (a)(2)(D) and 

10 (b)(2)(D) of section 1916 of the Social Security Act 

11 (42 U.S.C. 1396o(a)(2)(D)) are amended by insert12 ing ‘‘, services and supplies to treat infertility and 

13 provide fertility preservation services described in 

14 section 1905(a)(4)(G)’’ after ‘‘1905(a)(4)(C)’’ each 

15 place it appears. 

16 (2) APPLICATION TO ALTERNATIVE COST SHAR17 ING.—Section 1916A(b)(3)(B)(vii) of the Social Se18 curity Act (42 U.S.C. 1396o–1(b)(3)(B)(vii)) is 

19 amended by inserting ‘‘ and services and supplies to 

20 treat infertility and provide fertility preservation de21 scribed in section 1905(a)(4)(G)’’ before the period. 

22 (c) PRESUMPTIVE ELIGIBILITY FOR INFERTILITY

23 TREATMENT.—Section 1920C of the Social Security Act 

24 (42 U.S.C. 1396r–1c) is amended— 


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1 (1) in the section heading, by inserting ‘‘AND

2 INFERTILITY TREATMENT’’ after ‘‘FAMILY PLANNING

3 SERVICES’’; 

4 (2) in subsection (a)— 

5 (A) by striking ‘‘State plan’’ and inserting 

6 ‘‘A State plan’’; 

7 (B) by striking ‘‘1905(a)(4)(C)’’ and in8 serting ‘‘section 1905(a)(4)(C), services and 

9 supplies to treat infertility and prevent iatro10 genic infertility described in section 

11 1905(a)(4)(G),’’; and 

12 (C) by inserting ‘‘or in conjunction with an 

13 infertility treatment service in an infertility 

14 treatment setting’’ before the period. 

15 (d) INCLUSION IN BENCHMARK COVERAGE.—Section 

16 1937(b) of the Social Security Act (42 U.S.C. 1396u– 

17 7(b)) is amended by adding at the end the following new 

18 paragraph: 

19 ‘‘(9) COVERAGE OF INFERTILITY TREATMENT

20 AND PREVENTION OF IATROGENIC INFERTILITY.— 

21 Notwithstanding the previous provisions of this sec22 tion, a State may not provide for medical assistance 

23 through enrollment of an individual with benchmark 

24 coverage or benchmark-equivalent coverage under 

25 this section unless such coverage includes medical 


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1 assistance for services and supplies to treat infer2 tility and provide fertility preservation described in 

3 section 1905(a)(4)(G) in accordance with such sec4 tion.’’. 

5 (e) EFFECTIVE DATE.— 

6 (1) IN GENERAL.—Except as provided in para7 graph (2), the amendments made by this section 

8 shall take effect on October 1, 2021. 

9 (2) DELAY PERMITTED IF STATE LEGISLATION

10 REQUIRED.—In the case of a State plan approved 

11 under title XIX of the Social Security Act which the 

12 Secretary of Health and Human Services determines 

13 requires State legislation (other than legislation ap14 propriating funds) in order for the plan to meet the 

15 additional requirement imposed by this section, the 

16 State plan shall not be regarded as failing to comply 

17 with the requirements of such title solely on the 

18 basis of the failure of the plan to meet such addi19 tional requirement before the first day of the first 

20 calendar quarter beginning after the close of the 

21 first regular session of the State legislature that 

22 ends after the 1-year period beginning with the date 

23 of the enactment of this section. For purposes of the 

24 preceding sentence, in the case of a State that has 

25 a 2-year legislative session, each year of the session 


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1 is deemed to be a separate regular session of the 

2 State legislature. 

Æ 


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