II 117th CONGRESS 1st Session S. 1280 IN THE SENATE OF THE UNITED STATES April 21, 2021 Mrs. Murray (for herself, Ms. Duckworth , Mr. Durbin , Ms. Warren , Mr. Markey , Mr. Sanders , Mr. Blumenthal , Mr. Bennet , Mr. Coons , Mr. Wyden , Mr. Brown , Mrs. Shaheen , Mr. Warnock , Ms. Hassan , and Ms. Klobuchar ) introduced the following bill; which was read twice and referred to the Committee on Veterans' Affairs A BILL To improve the reproductive assistance provided by the Department of Defense and the Department of Veterans Affairs to certain members of the Armed Forces, veterans, and their spouses or partners, and for other purposes.

1. Short title; table of contents (a) Short title This Act may be cited as the Veteran Families Health Services Act of 2021 . (b) Table of contents The table of contents for this Act is as follows: Sec. 1. Short title; table of contents. TITLE I—Reproductive and fertility preservation assistance for members of the Armed Forces Sec. 101. Definitions. Sec. 102. Provision of fertility treatment and counseling to certain members of the Armed Forces and spouses, partners, and gestational surrogates of such members. Sec. 103. Establishment of fertility preservation procedures after an injury or illness. Sec. 104. Cryopreservation and storage of gametes of members of the Armed Forces on active duty. Sec. 105. Assistance with and continuity of care regarding reproductive and fertility preservation services. Sec. 106. Coordination between Department of Defense and Department of Veterans Affairs on furnishing of fertility treatment and counseling. TITLE II—Reproductive and adoption assistance for veterans Sec. 201. Inclusion of fertility treatment and counseling under the definition of medical services in title 38. Sec. 202. Fertility treatment and counseling for certain veterans and spouses, partners, and gestational surrogates of such veterans. Sec. 203. Adoption assistance for certain veterans. Sec. 204. Assistance with and continuity of care regarding reproductive and fertility preservation services. Sec. 205. Facilitation of reproduction and infertility research. Sec. 206. Annual report on fertility treatment and counseling furnished by Department of Veterans Affairs. Sec. 207. Report on timeliness and adequacy of access by veterans to fertility treatment and counseling services furnished by Department of Veterans Affairs. Sec. 208. Regulations on furnishing of fertility treatment and counseling and adoption assistance by Department of Veterans Affairs. I Reproductive and fertility preservation assistance for members of the Armed Forces 101. Definitions In this title: (1) Active duty The term active duty has the meaning given that term in section 101(d)(1) of title 10, United States Code. (2) Armed Forces The term Armed Forces has the meaning given the term armed forces in section 101(a)(4) of such title. 102. Provision of fertility treatment and counseling to certain members of the Armed Forces and spouses, partners, and gestational surrogates of such members (a) Fertility treatment and counseling (1) In general The Secretary of Defense shall furnish fertility treatment and counseling, including through the use of assisted reproductive technology, to a covered member of the Armed Forces or a spouse, partner, or gestational surrogate of such a member. (2) Eligibility for treatment and counseling Fertility treatment and counseling shall be furnished under paragraph (1) without regard to the sex, gender identity, sexual orientation, or marital status of the covered member of the Armed Forces. (3) In vitro fertilization In the case of in vitro fertilization treatment furnished under paragraph (1), the Secretary may furnish not more than three completed cycles or six attempted cycles of in vitro fertilization, whichever occurs first, to an individual under such paragraph. (b) Procurement of gametes If a covered member of the Armed Forces is unable to provide their gametes for purposes of fertility treatment under subsection (a), the Secretary shall, at the election of such member, allow such member to receive such treatment with donated gametes and pay or reimburse such member the reasonable costs of procuring gametes from a donor. (c) Rule of construction Nothing in this section shall be construed to require the Secretary— (1) to find or certify a gestational surrogate for a covered member of the Armed Forces or to connect a gestational surrogate with such a member; or (2) to find or certify gametes from a donor for a covered member of the Armed Forces or to connect such a member with gametes from a donor. (d) Definitions In this section: (1) Assisted reproductive technology The term assisted reproductive technology includes in vitro fertilization and other fertility treatments in which both eggs and sperm are handled when clinically appropriate. (2) Covered member of the Armed Forces The term covered member of the Armed Forces means a member of the Armed Forces who has an infertility condition, unless the Secretary can show that the member was completely infertile before service on active duty in the Armed Forces. (3) Fertility treatment The term fertility treatment includes the following: (A) Procedures that use assisted reproductive technology. (B) Sperm retrieval. (C) Egg retrieval. (D) Artificial insemination. (E) Embryo transfer. (F) Such other treatments as the Secretary of Defense considers appropriate. (4) Infertility condition The term infertility condition includes— (A) a diagnosis of infertility; or (B) the inability to conceive or safely carry a pregnancy to term, including as a result of treatment for another condition. (5) Partner The term partner , with respect to a member of the Armed Forces, means an individual selected by the member who agrees to share with the member the parental responsibilities with respect to any child born as a result of the use of any fertility treatment under this section. 103. Establishment of fertility preservation procedures after an injury or illness (a) In general The Secretary of Defense, acting through the Assistant Secretary of Defense for Health Affairs, shall establish procedures for the retrieval of gametes, as soon as medically appropriate, from a member of the Armed Forces in cases in which the fertility of such member is potentially jeopardized as a result of an injury or illness incurred or aggravated while serving on active duty in the Armed Forces in order to preserve the medical options of such member. (b) Consent for retrieval of gametes Gametes may be retrieved from a member of the Armed Forces under subsection (a) only— (1) with the specific consent of the member; or (2) if the member is unable to consent, if a medical professional determines that— (A) the future fertility of the member is potentially jeopardized as a result of an injury or illness described in subsection (a) or will be potentially jeopardized as a result of treating such injury or illness; (B) the member lacks the capacity to consent to the retrieval of gametes and is likely to regain such capacity; and (C) the retrieval of gametes under this section is in the medical interest of the member. (c) Consent for use of retrieved gametes Gametes retrieved from a member of the Armed Forces under subsection (a) may be used only— (1) with the specific consent of the member; or (2) if the member has lost the ability to consent permanently, as determined by a medical professional, as specified in an advance directive or testamentary instrument executed by the member. (d) Disposal of gametes In accordance with regulations prescribed by the Secretary for purpose of this subsection, the Secretary shall dispose of gametes retrieved from a member of the Armed Forces under subsection (a)— (1) with the specific consent of the member; or (2) if the member— (A) has lost the ability to consent permanently, as determined by a medical professional; and (B) has not specified the use of their gametes in an advance directive or testamentary instrument executed by the member. 104. Cryopreservation and storage of gametes of members of the Armed Forces on active duty (a) In general The Secretary of Defense shall provide members of the Armed Forces on active duty in the Armed Forces with the opportunity to cryopreserve and store their gametes prior to— (1) deployment to a combat zone; or (2) a duty assignment that includes a hazardous assignment, as determined by the Secretary. (b) Period of time (1) In general The Secretary shall provide for the cryopreservation and storage of gametes of any member of the Armed Forces under subsection (a) in a facility of the Department of Defense or of a private entity and the transportation of such gametes, at no cost to the member, until the date that is one year after the retirement, separation, or release of the member from the Armed Forces. (2) Continued cryopreservation and storage At the end of the one-year period specified in paragraph (1), the Secretary shall permit an individual whose gametes were cryopreserved and stored in a facility of the Department as described in that paragraph to select, including pursuant to an advance medical directive or military testamentary instrument completed under subsection (c), one of the following options: (A) To continue such cryopreservation and storage in such facility with the cost of such cryopreservation and storage borne by the individual. (B) To transfer the gametes to a private cryopreservation and storage facility selected by the individual. (C) To transfer the gametes to a facility of the Department of Veterans Affairs if cry­o­pre­ser­va­tion and storage is available to the individual at such facility. (3) Disposal of gametes If an individual described in paragraph (2) does not make a selection under subparagraph (A), (B), or (C) of such paragraph, the Secretary may dispose of the gametes of the individual not earlier than the date that is 90 days after the end of the one-year period specified in paragraph (1) with respect to the individual. (c) Advance medical directive and military testamentary instrument A member of the Armed Forces who elects to cryopreserve and store their gametes under this section must complete an advance medical directive, as defined in section 1044c(b) of title 10, United States Code, and a military testamentary instrument, as defined in section 1044d(b) of such title, that explicitly specifies the use of their cryopreserved and stored gametes if such member dies or otherwise loses the capacity to consent to the use of their cryopreserved and stored gametes. (d) Agreements To carry out this section, the Secretary may enter into agreements with private entities that provide cryopreservation, transportation, and storage services for gametes. 105. Assistance with and continuity of care regarding reproductive and fertility preservation services The Secretary of Defense shall ensure that employees of the Department of Defense assist members of the Armed Forces— (1) in navigating the services provided under this title; (2) in finding a provider that meets the needs of such members with respect to such services; and (3) in continuing the receipt of such services without interruption during a permanent change of station for such members. 106. Coordination between Department of Defense and Department of Veterans Affairs on furnishing of fertility treatment and counseling (a) In general The Secretary of Defense and the Secretary of Veterans Affairs shall share best practices and facilitate referrals, as they consider appropriate, on the furnishing of fertility treatment and counseling to individuals eligible for the receipt of such counseling and treatment from the Secretaries. (b) Memorandum of understanding The Secretary of Defense and the Secretary of Veterans Affairs shall enter into a memorandum of understanding— (1) providing that the Secretary of Defense will ensure access by the Secretary of Veterans Affairs to gametes of veterans stored by the Department of Defense for purposes of furnishing fertility treatment under section 1720K of title 38, United States Code, as added by section 202(a); and (2) authorizing the Department of Veterans Affairs to compensate the Department of Defense for the cryopreservation, transportation, and storage of gametes of veterans under section 104. II Reproductive and adoption assistance for veterans 201. Inclusion of fertility treatment and counseling under the definition of medical services in title 38 Section 1701(6) of title 38, United States Code, is amended by adding at the end the following new subparagraph: (I) Fertility treatment and counseling, including treatment using assisted reproductive technology. . 202. Fertility treatment and counseling for certain veterans and spouses, partners, and gestational surrogates of such veterans (a) In general Subchapter II of chapter 17 of title 38, United States Code, is amended by adding at the end the following new section: 1720K. Fertility treatment and counseling for certain veterans and spouses, partners, and gestational surrogates of such veterans (a) In general (1) The Secretary shall furnish fertility treatment and counseling, including through the use of assisted reproductive technology, to a covered veteran or a spouse, partner, or gestational surrogate of a covered veteran if the veteran, and the spouse, partner, or gestational surrogate of the veteran, as applicable, apply jointly for such treatment and counseling through a process prescribed by the Secretary. (2) Fertility treatment and counseling shall be furnished under paragraph (1) without regard to the sex, gender identity, sexual orientation, or marital status of the covered veteran. (3) In the case of in vitro fertilization treatment furnished under paragraph (1), the Secretary may furnish not more than three completed cycles or six attempted cycles of in vitro fertilization, whichever occurs first, to an individual under such paragraph. (b) Procurement of gametes If a covered veteran is unable to provide their gametes for purposes of fertility treatment under subsection (a), the Secretary shall, at the election of such member, allow such veteran to receive such treatment with donated gametes and pay or reimburse such veteran the reasonable costs of procuring gametes from a donor. (c) Coordination of care for other individuals In the case of a veteran or a spouse, partner, or gestational surrogate of a veteran not described in subsection (a) who is seeking fertility treatment and counseling, the Secretary may coordinate fertility treatment and counseling for such veteran, spouse, partner, or gestational surrogate. (d) Outreach and training The Secretary shall carry out an outreach and training program to ensure veterans and health care providers of the Department are aware of— (1) the availability of and eligibility requirements for fertility treatment and counseling under this section; and (2) any changes to fertility treatment and counseling covered under this section. (e) Rule of construction Nothing in this section shall be construed to require the Secretary— (1) to find or certify a gestational surrogate for a covered veteran or to connect a gestational surrogate with a covered veteran; or (2) to furnish maternity care to a covered veteran or spouse, partner, or gestational surrogate of a covered veteran in addition to what is otherwise required by law. (f) Definitions In this section: (1) The term assisted reproductive technology includes in vitro fertilization and other fertility treatments in which both eggs and sperm are handled when clinically appropriate. (2) The term covered veteran means a veteran who— (A) has an infertility condition, unless the Secretary can show that the veteran was completely infertile before service in the active military, naval, or air service; and (B) is enrolled in the system of annual patient enrollment established under section 1705(a) of this title. (3) The term fertility treatment includes the following: (A) Procedures that use assisted reproductive technology. (B) Sperm retrieval. (C) Egg retrieval. (D) Artificial insemination. (E) Embryo transfer. (F) Such other treatments as the Secretary considers appropriate. (4) The term infertility condition includes— (A) a diagnosis of infertility; or (B) the inability to conceive or safely carry a pregnancy to term, including as a result of treatment for another condition. (5) The term partner , with respect to a veteran, means an individual selected by the veteran who agrees to share with the veteran the parental responsibilities with respect to any child born as a result of the use of any fertility treatment under this section. . (b) Clerical amendment The table of sections at the beginning of subchapter II of chapter 17 of such title is amended by inserting after the item relating to section 1720J the following new item: 1720K. Fertility treatment and counseling for certain veterans and spouses, partners, and gestational surrogates of such veterans. . 203. Adoption assistance for certain veterans (a) In general Subchapter VIII of chapter 17 of title 38, United States Code, is amended by adding at the end the following new section: 1789. Adoption assistance (a) In general The Secretary may pay an amount, not to exceed the limitation amount, to assist a covered veteran in the adoption of one or more children, without regard to the sex, gender identity, sexual orientation, or marital status of the covered veteran. (b) Limitation amount For purposes of this section, the limitation amount is the amount equal to the cost the Department would incur by paying the expenses of three adoptions by covered veterans, as determined by the Secretary. (c) Covered veteran defined In this section, the term covered veteran has the meaning given that term in section 1720K(f) of this title. . (b) Clerical amendment The table of sections at the beginning of subchapter VIII of chapter 17 of such title is amended by inserting after the item relating to section 1788 the following new item: 1789. Adoption assistance. . 204. Assistance with and continuity of care regarding reproductive and fertility preservation services The Secretary of Veterans Affairs shall ensure that employees of the Department of Veterans Affairs assist veterans— (1) in navigating the services provided under this title and the amendments made by this title; (2) in finding a provider that meets the needs of such veterans with respect to such services; and (3) in continuing the receipt of such services without interruption if such veterans move to a different geographic location. 205. Facilitation of reproduction and infertility research (a) In general Subchapter II of chapter 73 of title 38, United States Code, is amended by adding at the end the following new section: 7330D. Facilitation of reproduction and infertility research (a) Facilitation of research required The Secretary shall facilitate research conducted collaboratively by the Secretary of Defense and the Secretary of Health and Human Services to improve the ability of the Department of Veterans Affairs to meet the long-term reproductive health care needs of veterans who have a genitourinary service-connected disability or a condition that was incurred or aggravated in line of duty in the active military, naval, or air service, such as a spinal cord injury, military sexual trauma, or a mental health condition, that affects the ability of the veteran to reproduce. (b) Dissemination of information The Secretary shall ensure that information produced by the research facilitated under this section that may be useful for other activities of the Veterans Health Administration is disseminated throughout the Veterans Health Administration. . (b) Clerical amendment The table of sections at the beginning of subchapter II of chapter 73 of such title is amended by inserting after the item relating to section 7330C the following new item: 7330D. Facilitation of reproduction and infertility research. . (c) Report (1) In general Not later than three years after the date of the enactment of this Act, the Secretary of Veterans Affairs shall submit to Congress a report on the research activities conducted by the Secretary under section 7330D of title 38, United States Code, as added by subsection (a). (2) Elements The report submitted under paragraph (1) shall include demographic data on veterans included in the research conducted under section 7330D of title 38, United States Code, as added by subsection (a), disaggregated by age, race, ethnicity, sex, gender identity, sexual orientation, marital status, type of disability (if applicable), and geographic location of such veterans. 206. Annual report on fertility treatment and counseling furnished by Department of Veterans Affairs (a) In general Not later than one year after the date of the enactment of this Act, and not less frequently than annually thereafter, the Secretary of Veterans Affairs shall submit to the Committee on Veterans' Affairs of the Senate and the Committee on Veterans' Affairs of the House of Representatives a report on the fertility treatment and counseling furnished by the Department of Veterans Affairs, including through non-Department providers, during the year preceding the submittal of the report. (b) Elements Each report submitted under subsection (a) shall include, for the period covered by the report, the following: (1) The number of veterans who were diagnosed with clinical infertility, disaggregated by age, race, ethnicity, sex, gender identity, sexual orientation, marital status, type of disability (if applicable), geographic location, era of military service, and, to the extent possible to determine, the cause of infertility of such veterans. (2) The number of veterans who received fertility treatment or counseling furnished by the Department of Veterans Affairs, including through non-Department providers, disaggregated by age, race, ethnicity, sex, gender identity, sexual orientation, marital status, type of disability (if applicable), geographic location, era of military service, and, to the extent possible to determine, the cause of infertility of such veterans. (3) The number of veterans who self-reported difficulty becoming pregnant or successfully carrying a pregnancy to term to a health care provider of the Department or a non-Department provider, dis­ag­gre­gated by age, race, ethnicity, sex, gender identity, sexual orientation, marital status, type of disability (if applicable), and geographic location of such veterans. (4) The number of veterans who were exposed to hazardous chemical or biological agents during service in the Armed Forces who— (A) received a clinical diagnosis of infertility; or (B) self-reported difficulty becoming pregnant or successfully carrying a pregnancy to term. (5) The number of spouses, partners, and gestational surrogates of veterans who received fertility treatment or counseling furnished by the Department, including through non-Department providers. (6) The cost to the Department of furnishing fertility treatment and counseling, including through non-Department providers, disaggregated by cost of services and administration. (7) The average cost to the Department per recipient of fertility treatment and counseling. (8) In cases in which the Department furnished fertility treatment through the use of assisted reproductive technology, including through non-Department providers, the average number of cycles per person furnished, disaggregated by type of treatment. (9) A description of how fertility treatment and counseling services of the Department, including those services provided through non-Department providers, are coordinated with similar services of the Department of Defense, including the average wait time for veterans to transfer from the health system of the Department of Defense to the Veterans Health Administration. (c) Definitions In this section, the terms assisted reproductive technology and partner have the meanings given those terms in section 1720K(f) of title 38, United States Code, as added by section 202(a). 207. Report on timeliness and adequacy of access by veterans to fertility treatment and counseling services furnished by Department of Veterans Affairs (a) In general Not later than 180 days after the date of the enactment of this Act, and not less frequently than every 180 days thereafter, the Secretary of Veterans Affairs shall submit to Congress a report containing data on the timeliness and adequacy of access by veterans to fertility treatment and counseling services furnished by the Department of Veterans Affairs, including through non-Department providers. (b) Elements Each report submitted under subsection (a) shall include, for the period covered by the report, the following: (1) The average number of days from when a veteran first seeks fertility treatment to when a referral for such treatment is made and the average number of days from when such referral is made to when an appointment for such treatment occurs, disaggregated by facility of the Department or non-Department provider. (2) The average number of days from when a veteran first seeks fertility counseling to when a referral for such counseling is made and the average number of days from when such referral is made to when an appointment for such counseling occurs, disaggregated by facility of the Department or non-Department provider. (3) The number of available providers of the Department and non-Department providers for fertility treatment and counseling in each State or territory, disaggregated by facility. (4) The average number of days it takes for the Secretary to pay claims for fertility treatment and counseling services from non-Department providers under section 1703D of title 38, United States Code. 208. Regulations on furnishing of fertility treatment and counseling and adoption assistance by Department of Veterans Affairs Not later than 18 months after the date of the enactment of this Act, the Secretary of Veterans Affairs shall prescribe regulations— (1) to carry out section 1720K of title 38, United States Code, as added by section 202(a); and (2) to carry out section 1789 of such title, as added by section 203(a).