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HIV, ARTs, and the ADA
Carl H. Coleman
Seton Hall Law School
Mark V. Sauer (2003) makes a persuasive ethical argument for eliminating restrictions on the provision of assisted reproductive technologies (ARTs) to human immunodeficiency virus type 1 (HIV-1) serodiscordant couples. In addition to the ethical considerations, there is a practical reason physicians should heed Sauer's advice: Denying individuals ARTs on the basis of their HIV status may subject the physician to liability under the Americans with Disabilities Act (ADA). Indeed, while Sauer limits his argument to couples in which only the male partner is HIV-positive, the potential for ADA liability extends to cases involving HIV-positive women as well.
First, it is likely that HIV-positive individuals seeking ARTs would fit within the statute's definition of a "person with a disability." The primary definition of disability under the ADA is a "physical or mental impairment that substantially limits one or more of the major life activities" of an individual (42 U.S.C. § 12102(2) ). In Bragdon v. Abbott (524 U.S. 624 ), an ADA case brought by an HIV-positive woman who was refused treatment in a dentist's office, the Supreme Court held that the plaintiff was disabled because her HIV infection substantially limited her ability to reproduce, which the Court characterized as a major life activity. While the Court recognized that the plaintiff was not physically incapable of reproducing, it noted that she had decided not to have children because of the risk that the virus would be transmitted to her offspring. In the Court's view, the risk of "transmitting a dread and fatal disease to one's child" constitutes a substantial limitation on reproduction, even if it does not foreclose the possibility of reproduction completely.
Admittedly, HIV-positive individuals who have been denied ARTs are in a different position than the plaintiff in Bragdon, as they obviously cannot claim that their HIV infection has deterred them from attempting to have children. However, while Bragdon did not establish that HIV infection is a per se disability, it made clear that "the disability definition does not turn on personal choice" (Bragdon, at 641). In addition, in Sutton v. United Airlines (527 U.S. 471 ), the Court noted that individuals who have overcome a disability's primary burdens may still satisfy the definition of disability if overcoming those burdens itself imposes substantial limitations on a major life activity. This may be the case for HIV-positive individuals who seek to reproduce, who face medical, economic, and social burdens that most people having children need not confront. Moreover, even if HIV-positive individuals seeking ARTs cannot claim that they have been substantially limited in the major life activity of reproduction, they might be able to establish that physicians who refuse to treat them are "regarding" them as having such a limitation, which constitutes an independent basis for establishing a disability under the ADA (42 U.S.C. § 12102(2)). The argument would be that whenever a physician refuses to help someone become pregnant based on a judgment that the person's medical condition makes pregnancy inadvisable, the physician is treating the person as if she were substantially limited in her reproductive capacity and is therefore regarding the person as an individual with a disability under the ADA.
Assuming that HIV-positive individuals denied ARTs can satisfy the definition of disability, they should have no trouble establishing that they have been discriminated against "on the basis of disability," as the statute requires (42 U.S.C. § 12182(a)). While some physicians might claim that they are simply adhering to neutral, nondiscriminatory policies—for example, policies denying treatment to patients likely to die before their children reach adulthood, or to patients at higher-than-normal risk of developing pregnancy complications—these claims, even if true, would probably not be sufficient to avoid the application of the statute. The ADA applies not only to explicit discriminatory policies but also to facially neutral eligibility criteria "that...