Courts disagree on ADA coverage for infertility.

For a person who desperately wants a child, the inability to conceive causes heartache enough. But women who have sought treatment for infertility have claimed in a series of lawsuits that the hurt is made worse when their condition leads to job discrimination.

Charline Pacourek, for example, was fired from her job at a Chicago-area company after receiving several unsuccessful fertility treatments in 1991 and 1992. Her employer, Inland Steel Co., cited her frequent absences from work during the treatments.

Pacourek sued Inland Steel under the Americans with Disabilities Act (ADA), arguing that infertility qualifies as a disability under the act. She claimed that the company should have accommodated her need for time off to undergo the treatments. Last February, a federal judge in Illinois agreed that the ADA applies and refused the company's request to dismiss the case, which has since been settled. (Pacourek v. Inland Steel Co., 916 F. Supp. 797 (N.D. Ill. 1996).)

Lynn Gansar Zatarain made the same argument in a Louisiana district court with the opposite result. The judge threw out her case, which alleged that her employer, a New Orleans television station, had violated the ADA when it refused to alter her schedule as a news anchor to accommodate her fertility treatments. (Zatarain v. WDSU-Television, Inc., 881 F. Supp. 240 (E.D. La. 1995).)

In cases like these, courts are struggling to determine whether procreation meets the legal definition of a "major life activity" under the ADA.

Attorneys and other advocates for infertile people have urged judges to recognize the fundamental importance of reproduction in a person's life. Defendant employers, however, contend that reproduction is different from the types of activities listed in the ADA regulations, such as walking, seeing, speaking, breathing, learning, and working.

The court in Zatarain agreed with that distinction. "Reproduction is not an activity engaged in with the same degree of frequency" as the activities listed in the regulations, wrote Judge Sarah Vance of the Eastern District of Louisiana. "A person is required to walk, see, learn, speak, breathe, and work throughout the day, day in and day out. However, a person is not called upon to reproduce throughout the day, every day."

Ruling in Pacourek, Judge James Alesia said this reasoning "trivializes" reproduction. He rejected the idea that whether something qualifies as a major life activity depends on how often people do it.

"At the risk of waxing philosophical, none of us, nor any living thing, would exist without reproduction," Alesia wrote. "Many, if not most, people would consider having a child to be one of life's most significant moments and greatest achievements, and the inability to do so, one of life's greatest disappointments. . . . [T]o call working a major life activity, but to deny the same status to reproduction, seems ludicrous."

In other cases, plaintiffs have invoked the ADA to obtain insurance coverage for fertility treatments. Mary Jo Krauel, a respiratory therapist at an Iowa hospital, alleged that the hospital illegally denied coverage for the treatments in its health benefits plan. The court dismissed the case, following the reasoning in Zatarain. (Krauel v. Iowa Methodist Medical Center, 915 F. Supp.102 (S.D. Iowa 1995).)

Lawmakers have enacted measures concerning insurance coverage for fertility treatments in 13 states (Arkansas, California, Connecticut, Hawaii, Illinois, Maryland, Massachusetts, Montana, New York, Ohio, Rhode Island, Texas, and West Virginia), according to Resolve, a Somerville, Massachusetts-based advocacy group for infertile people. The laws' provisions vary considerably California, Connecticut, and Texas require only that insurers offer employers health plans that include infertility benefits; employers are not required to accept them.

Although high-tech and rarely used treatments like in-vitro fertilization are costly, many fertility treatments are no more expensive than other medical care routinely covered by insurance, said Terri Finesmith Horwich, a Chicago attorney specializing in reproduction-related cases.

"The decision not to cover infertility does not arise from an actuarial study in which the insurer determines it can't charge a premium that will cover costs," Horwich said. "What I see is that this is sort of a hangover from some myths about infertility," such as the belief that the condition is not a physical problem or that treatments are still experimental.

"There is no controversy [in the medical literature] that infertility is a physical illness. The crux of the issue is whether or not reproduction is a major life activity," Horwich said.

No federal appeals court has yet ruled on the question. A decision from the Eighth Circuit in Krauel's appeal is expected by the end of the year.