Federal agencies hope to create fertility benefits market

The fertility benefits product would be "excepted from" the underwriting requirements, value requirements and other requirements that federal laws like the Health Insurance Portability and Accountability Act and the Affordable Care Act.

An employer or employee could pay the premiums for the coverage using pre-tax income, meaning that the cash used to pay for the plan would be excluded from an employee's taxable income.

The U.S. Treasury Department's Internal Revenue Service, the U.S. Department of Labor's Employee Benefits Security Administration and the U.S. Department of Health and Human Services' Centers for Medicare & Medicaid Services are preparing to put the draft regulation in a preview version of the Federal Register — a government rulemaking publication — in the next few days.

Officials predict in a regulatory impact analysis that 743,361 women who were trying to become pregnant might sign up for the proposed fertility benefits product each year.

Comments on the draft regulations would be due 60 days after the official Federal Register publication date.

The draft regulations propose that employers with either fully insured group health insurance plans or self-insured health plans could start offering the fertility benefits plans for plan years beginning on or after Jan. 1, 2027.

What it means: If federal agencies complete rulemaking work quickly, and if insurers or other benefits product designers can figure out how to create profitable fertility benefits products, the products could be on the shelves as early as next year.

The history: Major medical insurance plans already cover some types of fertility-related care, such as diagnosis and treatment for endocrine conditions that may affect fertility.

But health insurers and self-insured employer health plans have wrestled with how to pay for some of the most expensive, specialized fertility treatments, such as use of in vitro fertilization efforts.

California, for example, has built some coverage for some IVF cycles into its standard health benefits package.

In the summer of 2024, while Trump was president, he suggested that the government could require employer-sponsored health plans to offer fertility benefits.

In February 2025, after Trump entered the White House, he issued an executive order calling for his team to come up with recommendations for reducing barriers to IVF procedures and aggressively reducing out-of-pocket costs for the procedures and health plan costs for the procedures.

In October 2025, federal agencies moved toward improving access to IVF treatments and other fertility care by issuing batches of guidance that encourage the sale of stand-alone, employee-funded fertility benefits plans.

Related: Trump administration promotes sale of employer-sponsored fertility insurance benefits

The existing guidance lets employers cover fertility benefits through stand-alone health reimbursement arrangements, or HRAs.

The new draft regulations: The new draft regulations would limit an employer to offering the new proposed fertility benefits products only to employees who were also offered major medical coverage.

An employee would not have to sign up for the major medical coverage to take up the fertility benefits product.

Fertility benefits would be "recognized as limited excepted benefits when coverage is limited to benefits substantially all of which are for the diagnosis, mitigation, or treatment of infertility or infertility-related reproductive health conditions and substantially all of which are provided by medical professionals authorized to practice under applicable law," according to the preamble, or official introduction, to the draft regulations.

A fertility benefits product could also "provide coverage for the services of fertility counselors and general education on fertility, provided that substantially all of the fertility benefits are still at the direction of a medical professional authorized to practice under applicable law," officials say in the preamble. "This is also consistent with many families' desire to pursue non-IVF fertility treatment options."

A fertility benefits product could cover products and services that were also covered by an employer's major medical coverage, but regulators say they would like to see the product issuers focus on covering benefits that are not typically covered under an employer's major medical plan.

"Coordination-of-benefits provisions under the terms of the plan or coverage, and applicable state and federal law would continue to apply," officials say.

An employer with a fertility benefits product would have to provide notices about the availability of the product to eligible plan participants and beneficiaries.

"These proposed rules would not require a minimum level of coverage nor would they require that plan sponsors contribute to the costs of the plans," officials say.

Officials do not appear to discuss whether issuers could exclude applicants with known fertility problems or other health problems.

Adverse selection: Officials acknowledge, in passing, that the fertility benefits products they are trying to create might be very expensive, because the people who would pay for the coverage would be people who were worried about having fertility problems.

"As such, risk pools for this type of insurance coverage may be complicated by adverse selection, where many participants and beneficiaries that elect to enroll in this type of coverage are aware of their need to utilize the benefits offered," officials say in the preamble. "Additionally, the availability of such coverage may induce some participants and beneficiaries to delay attempting to conceive in the knowledge that such benefits could minimize the financial risks of fertility-related medical care when they ultimately decide to attempt to conceive if fertility-related medical care is required. This may produce a pool of participants and beneficiaries that utilize fertility-related medical care at very high rates and more frequently require advanced fertility treatments or medications, which could subsequently generate high costs for the insurers that provide such plans. Given the sizeable expense for fertility-related treatment such as IVF, this could yield substantial expenditures for issuers and plans."

Officials note that issuers could take steps to "mitigate these risks through enrollment and benefit design," but they admit that they are uncertain about "how many plans and issuers would offer excepted fertility benefits, how enrollment would affect the risk pool, and how premiums for participants would be subsequently impacted."

In a list of questions for members of the public commenting on the draft regulations, officials "request comments on any information that may indicate the extent to which issuers and participants and beneficiaries would offer and enroll in such an arrangement."