[Congressional Bills 119th Congress]
[From the U.S. Government Publishing Office]
[S. 5108 Introduced in Senate (IS)]
<DOC>
119th CONGRESS
2d Session
S. 5108
To protect and expand nationwide access to assisted reproductive
technology, including in vitro fertilization.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
July 23, 2026
Ms. Duckworth (for herself, Mrs. Murray, Mr. Booker, Mr. Schumer, Ms.
Alsobrooks, Ms. Baldwin, Mr. Bennet, Mr. Blumenthal, Ms. Blunt
Rochester, Ms. Cantwell, Mr. Coons, Ms. Cortez Masto, Mr. Durbin, Mr.
Fetterman, Mr. Gallego, Mrs. Gillibrand, Ms. Hassan, Mr. Heinrich, Mr.
Hickenlooper, Ms. Hirono, Mr. Kaine, Mr. Kelly, Mr. Kim, Mr. King, Ms.
Klobuchar, Mr. Lujan, Mr. Markey, Mr. Merkley, Mr. Murphy, Mr. Ossoff,
Mr. Padilla, Mr. Peters, Mr. Reed, Ms. Rosen, Mr. Sanders, Mr. Schatz,
Mr. Schiff, Mrs. Shaheen, Ms. Slotkin, Ms. Smith, Mr. Van Hollen, Mr.
Warner, Mr. Warnock, Ms. Warren, Mr. Welch, Mr. Whitehouse, and Mr.
Wyden) introduced the following bill; which was read twice and referred
to the Committee on Health, Education, Labor, and Pensions
_______________________________________________________________________
A BILL
To protect and expand nationwide access to assisted reproductive
technology, including in vitro fertilization.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Right to IVF Act
of 2026''.
(b) Table of Contents.--The table of contents for this Act is as
follows:
Sec. 1. Short title; table of contents.
Sec. 2. Severability.
TITLE I--PROTECT IVF
Sec. 101. Short title.
Sec. 102. Purposes.
Sec. 103. Definitions.
Sec. 104. Assisted reproductive technology rights and intrauterine
insemination rights.
Sec. 105. Applicability and preemption.
TITLE II--VETERAN FAMILIES HEALTH SERVICES
Sec. 200. Short title.
Subtitle A--Reproductive and Fertility Preservation Assistance for
Members of the Uniformed Services
Sec. 201. Definitions.
Sec. 202. Provision of assisted reproductive technology, intrauterine
insemination, and counseling to certain
members of the uniformed services and
spouses, partners, and gestational
surrogates of such members.
Sec. 203. Establishment of fertility preservation procedures for
members of the uniformed services on active
duty.
Sec. 204. Assistance with and continuity of care regarding reproductive
and fertility preservation services.
Sec. 205. Coordination between Department of Defense and Department of
Veterans Affairs on furnishing of assisted
reproductive technology, intrauterine
insemination, and counseling.
Sec. 206. Regulations.
Subtitle B--Reproductive Assistance for Veterans
Sec. 211. Inclusion of assisted reproductive technology, intrauterine
insemination, and counseling under the
definition of medical services in title 38.
Sec. 212. Assisted reproductive technology, intrauterine insemination,
and counseling for certain veterans and
spouses, partners, and gestational
surrogates of such veterans.
Sec. 213. Assistance with and continuity of care regarding reproductive
and fertility preservation services.
Sec. 214. Coordination of reproduction and fertility research for
veterans.
TITLE III--ACCESS TO ASSISTED REPRODUCTIVE TECHNOLOGY AND INTRAUTERINE
INSEMINATION
Sec. 301. Short title.
Sec. 302. Standards relating to benefits for assisted reproductive
technology and intrauterine insemination.
Sec. 303. Requirement for State Medicaid plans to provide medical
assistance for assisted reproductive
technology and intrauterine insemination.
Sec. 304. Medicare coverage of assisted reproductive technology and
intrauterine insemination.
TITLE IV--FAMILY BUILDING FEHB FAIRNESS
Sec. 401. Short title.
Sec. 402. Assisted reproductive technology and intrauterine
insemination benefits.
SEC. 2. SEVERABILITY.
If any provision of this Act, or the application of such provision
to any person, entity, government, or circumstance is held to be
unconstitutional, the remainder of this Act, or the application of such
provision to all other persons, entities, governments, or circumstances
shall not be affected thereby.
TITLE I--PROTECT IVF
SEC. 101. SHORT TITLE.
This title may be cited as the ``Protect IVF Act''.
SEC. 102. PURPOSES.
The purposes of this title are as follows:
(1) To permit patients to seek and receive assisted
reproductive technology (ART), including in vitro fertilization
(IVF), and intrauterine insemination (IUI), and to permit
health care providers that choose to provide ART or IUI to
provide such services, by ensuring that States will not enact
harmful or unwarranted limitations or requirements that single
out the provision of ART or IUI for restrictions that are not
consistent with American Society for Reproductive Medicine
guidelines and that do not significantly advance reproductive
health or the efficacy and safety of ART or IUI, or that make
ART or IUI more difficult to access.
(2) To promote the right and ability of an individual
residing in any State to choose to receive ART or IUI provided
by a health care provider who chooses to provide such services.
(3) To protect an individual's right to make decisions, in
consultation with the individual's health care provider, about
the most appropriate medical care to maximize the chance of
becoming pregnant and giving birth to a healthy, living, human
child with the help of ART or IUI.
SEC. 103. DEFINITIONS.
In this title:
(1) Assisted reproductive technology; art.--The term
``assisted reproductive technology'' or ``ART'' means any
treatment or procedure that includes the handling of human eggs
or embryos to help achieve a pregnancy, including in vitro
fertilization, egg or embryo cryopreservation, and egg or
embryo donation. Such term includes any medication related to
such a treatment or procedure.
(2) Health care provider.--The term ``health care
provider'' means any entity or individual (including any
physician, nurse practitioner, physician assistant, pharmacist,
health care support personnel, or clinical staff) that--
(A) is engaged or seeks to engage in the delivery
of ART or IUI, including through the provision of
evidence-based information, counseling, referrals, or
items and services that relate to, aid in, or provide
ART or IUI; and
(B) if required by State law to be licensed,
certified, or otherwise authorized to engage in the
delivery of ART or IUI--
(i) is so licensed, certified, or otherwise
authorized; or
(ii) would be so licensed, certified, or
otherwise authorized but for the fact that the
individual or entity has provided, is
providing, or plans to provide, ART or IUI in
accordance with section 104.
(3) Health insurance issuer.--The term ``health insurance
issuer'' has the meaning given such term in section 2791(b) of
the Public Health Service Act (42 U.S.C. 300gg-91(b)).
(4) Intrauterine insemination; iui.--The term
``intrauterine insemination'' or ``IUI'' means a procedure that
places sperm directly into an individual's uterus at the time
of the individual's ovulation to increase the chances of
fertilization. Such term includes any medication associated
with such a procedure.
(5) Manufacturer.--The term ``manufacturer'' means the
manufacturer of a drug or device approved, cleared, authorized,
or licensed under section 505, 510(k), 513(f)(2), or 515 of the
Federal Food, Drug, and Cosmetic Act (21 U.S.C. 355, 360(k),
360c(f)(2), 360e) or section 351 of the Public Health Service
Act (42 U.S.C. 262), or otherwise legally marketed.
(6) State.--The term ``State'' includes each of the 50
States, the District of Columbia, each territory and possession
of the United States, and any political subdivision thereof.
SEC. 104. ASSISTED REPRODUCTIVE TECHNOLOGY RIGHTS AND INTRAUTERINE
INSEMINATION RIGHTS.
(a) General Rule.--
(1) Individual rights.--An individual has a statutory right
under this title, without prohibition, limitation,
interference, or impediment, to the extent that such
prohibition, limitation, interference, or impediment in any way
or degree obstructs, delays, or affects commerce over which the
Federal Government has jurisdiction, to--
(A) receive ART or IUI from a health care provider;
(B) continue or complete an ongoing ART or IUI
service previously initiated by a health care provider;
(C) make decisions and arrangements regarding the
donation, testing, use, storage, or disposition of
reproductive genetic material, such as oocytes, sperm,
fertilized eggs, and embryos; and
(D) establish contractual agreements with a health
care provider relating to the health care provider's
services in handling, testing, storing, shipping, and
disposing of the individual's reproductive genetic
material.
(2) Health care provider rights.--A health care provider
has a statutory right under this title, without prohibition,
limitation, interference, or impediment, to the extent that
such prohibition, limitation, interference, or impediment in
any way or degree obstructs, delays, or affects commerce over
which the Federal Government has jurisdiction, to--
(A) provide, or assist with the provision of, ART
or IUI;
(B) continue or complete the provision of, or
assistance with, ART or IUI that was lawful when
commenced;
(C) provide for, or assist with, the testing, use,
storage, or disposition of reproductive genetic
material, such as oocytes, sperm, fertilized eggs, and
embryos; and
(D) establish contractual agreements with
individuals or manufacturers relating to the health
care provider's services in handling, testing, storing,
shipping, and disposing of the individual's
reproductive genetic material.
(3) Health insurance issuer rights.--A health insurance
issuer has a statutory right under this title, without
prohibition, limitation, interference, or impediment, to the
extent that such prohibition, limitation, interference, or
impediment in any way or degree obstructs, delays, or affects
commerce over which the Federal Government has jurisdiction, to
cover the provision of ART or IUI.
(4) Manufacturer rights.--A manufacturer of a drug or
device that is approved, cleared, authorized, or licensed under
section 505, 510(k), 513(f)(2), or 515 of the Federal Food,
Drug, and Cosmetic Act (21 U.S.C. 355; 360(k); 360c(f)(2);
360e) or section 351 of the Public Health Service Act (42
U.S.C. 262) or otherwise legally marketed and intended for use
in the provision of ART or IUI, including the storage or
transport of oocytes, gametes, fertilized eggs, and embryos,
has a statutory right under this title, without prohibition,
limitation, interference, or impediment, to the extent that
such prohibition, limitation, interference, or impediment in
any way or degree obstructs, delays, or affects commerce over
which the Federal Government has jurisdiction, to manufacture,
import, market, sell, and distribute such drug or device.
(b) State Regulation of Medicine.--The enforcement of State health
and safety law regarding medical facilities or health care providers
does not constitute a violation of subsection (a) if--
(1) such regulations are consistent with guidance from the
American Society for Reproductive Medicine for providing ART or
IUI; and
(2) the safety or health objective cannot be advanced by a
different means that does not prohibit, limit, interfere with,
or impede the rights described in subsection (a).
(c) Enforcement.--
(1) The attorney general.--
(A) In general.--The Attorney General may commence
a civil action on behalf of the United States against
any State; an individual, employee, official, agency
head, contractor, organization, or instrumentality
acting for, or on behalf of, such a State; or any
individual acting under the color of, or pursuant to,
State law, that implements, enforces, or threatens to
enforce a limitation or requirement that prohibits,
limits, interferes with, or impedes the statutory
rights of an individual, a health care provider, a
health insurance issuer, or a manufacturer under
subsection (a).
(B) Effect of violations.--The court shall hold
unlawful and set aside a limitation or requirement
described in subparagraph (A) if it is in violation of
subsection (a).
(2) Private right of action.--
(A) In general.--Any individual or entity adversely
affected by an alleged violation of subsection (a) may
commence a civil action against an individual,
employee, official, agency head, contractor,
organization, or instrumentality acting for, or on
behalf of, such a State that enacts, implements, or
enforces a limitation or requirement that prohibits,
limits, interferes with, or impedes the statutory
rights of an individual, a health care provider, a
health insurance issuer, or a manufacturer under
subsection (a).
(B) Effect of violations.--The court shall hold
unlawful and enjoin a limitation or requirement
described in subparagraph (A) if it is in violation of
subsection (a).
(3) Health care provider.--
(A) In general.--A health care provider may
commence a civil action for relief on such provider's
own behalf, on behalf of the provider's staff, or on
behalf of the provider's patients who are or may be
adversely affected by an alleged violation of
subsection (a).
(B) Effect of violations.--The court shall hold
unlawful and enjoin a limitation or requirement
described in subparagraph (A) if it is in violation of
subsection (a).
(4) Equitable relief.--In any action under this section,
the court may award appropriate equitable relief, including
temporary, preliminary, or permanent injunctive relief.
(5) Costs.--
(A) In general.--In any action under this section,
the court shall award costs of litigation, as well as
reasonable attorney's fees, to any prevailing
plaintiff.
(B) Liability of plaintiffs.--A plaintiff shall not
be liable to a defendant for costs or attorney's fees
in any non-frivolous action under this section unless
such costs or attorney's fees are imposed by the court
as part of sanctions for violations committed during
the discovery process.
(6) Jurisdiction.--The district courts of the United States
shall have jurisdiction over proceedings under this section and
shall exercise the same without regard to whether the party
aggrieved shall have exhausted any administrative or other
remedies that may be provided for by law.
(7) Right to remove.--
(A) In general.--Any party shall have a right to
remove an action brought under this subsection to the
district court of the United States for the district
and division embracing the place where such action is
pending.
(B) Review.--An order remanding the case to the
State court from which it was removed under this
paragraph is immediately reviewable by appeal or
otherwise.
(d) Regulations.--Not later than 180 days after the date of
enactment of this Act, the Secretary of Health and Human Services shall
promulgate regulations to carry out this section.
(e) Rules of Construction.--
(1) In general.--For purposes of this title, a State law,
or the administration, implementation, or enforcement of a
State law, constitutes a prohibition, limitation, interference,
or impediment on a health care provider providing, an
individual receiving, a health insurance issuer covering, or a
manufacturer marketing drugs or devices for ART or IUI, as
described in this section, if the administration,
implementation, interpretation, or enforcement of such law has
an effect that--
(A) imposes requirements or limitations that are
inconsistent with providing, receiving, providing
health insurance coverage for, or providing drugs or
devices for ART or IUI or that otherwise violate the
purpose and requirements of this Act, which may
include--
(i) requiring that a health care provider
provide, and patients undertake, medically
unnecessary procedures and