Published July 20, 2026
On July 13, 2026, EPPC Scholars Eric Kniffin, Rachel N. Morrison, Aaron Kheriaty, Katelyn Walls Shelton, and Jamie Bryan Hall submitted a public comment to the Departments of Health and Human Services, Labor, and Treasury in response to a tri-agency Proposed Rule that would establish certain fertility benefits as a new category of “limited excepted benefits.” Similar to the separately available dental and vision plans Americans are familiar with, employers would have flexibility to offer a proposed limited fertility benefit and receive favorable tax treatment. The proposed limited fertility benefit would give employers the opportunity to create plans that offer a wide range of coverage, from the diagnosis and treatment of conditions that lead to infertility all the way to artificial reproductive technology like in-vitro fertilization (IVF).
As the scholars explained, the Departments have the authority and discretion to name additional limited excepted benefits, so long as new options are “similar” to the dental and vision plans Congress established by statute. To satisfy this “similar” requirement, the scholars argue that the Departments must offer a robust definition of “infertility” and make a diagnosis of infertility a prerequisite to any fertility benefits:
[L]imited-scope [dental and vision] plans are defined not merely by subject matter but by treatment. … [N]o ‘limited scope’ vision plan covers expensive, non-prescription sunglasses for an individual with 20/20 vision. To use the plan, the beneficiary must in every instance have an actual medical problem diagnosed in good faith by a relevant medical professional.
The scholars also urge the Departments to adopt a definition of “infertility” that clearly distinguishes pathology-based and elective treatments. The scholars argue that a proper definition of infertility would exclude so-called “social infertility,” or “the inability to reproduce” because of “social factors such as a person’s lack of a partner or because of a person’s sexual orientation.”
[T]he Departments should reference … [a] definition of “infertility” that requires a demonstrated failure to conceive following an adequate period of fertility-focused intercourse between a man and a woman. Doing so would ensure that the benefit is genuinely limited to the treatment of diagnosed pathology, consistent with the Departments’ own stated reliance on the dental and vision analogy, and not function as an open-ended subsidy for any individual’s preferred path to parenthood.
The scholars’ comment recommends four concrete mechanisms supporting this diagnostic requirement: diagnostic fertility testing, restorative treatment trials prior to assisted reproductive technology (ART) referrals, model plans that confirm restorative-focused benefits are qualifying, and confirmation that plans may adopt differentiated sub-limits for restorative or curative treatments versus elective ART.
The scholars also urge the Departments to confirm that plan sponsors “may adopt ethical guardrails on assisted reproductive technology” and categorically exclude practices that many Americans find immoral, such as the creation and destruction of “excess embryos,” eugenic selection among embryos, and gamete freezing.
Finally, the scholars thanked the Departments for resisting the pressure to mandate IVF via an “Essential Health Benefit” package under the Affordable Care Act.
Other organizations submitting comments on the Proposed Rule include:
- The American Association of Pro-Life Obstetricians and Gynecologists
- The Ethics & Religious Liberty Commission of the Southern Baptist Convention
- The Idaho Family Policy Center
- The National Catholic Bioethics Center, The Catholic Medical Association, and The National Association of Catholic Nurses, USA
Eric Kniffin is a fellow at the Ethics and Public Policy Center, where he works on a range of initiatives to protect and strengthen religious liberty as part of EPPC’s Administrative State Accountability Project.
