EBSA-2026-0232-0001, The Nat. Catholic Bioethics Center; Catholic Medical Assoc.; National Assoc. of Catholic Nurses, USA

The National Catholic Bioethics Center (NCBC), the Catholic Medical Association (CMA), and the National Association of Catholic Nurses, USA (NACN-USA)submit the attached public comment in response to the Proposed Rule: "Excepted Fertility Benefits." NCBC, CMA, and NACN-USA support the health enhancing provisions within the Proposed Rule, which represent a valuable opportunity to advance real solutions to infertility that respects the God-given dignity of parents and of children, born and pre-born. However, there is a need for a clear definition of infertility that determines infertility by reference to an inability to conceive, based on a pathology, through intercourse with a spouse of the opposite sex. We have provided a definition herein. The very definition of ART as referenced here bypasses the very human nature of reproduction, turning that sacred gift into a laboratory procedure. Therefore, we urge the Departments to refocus the rule on therapeutic, restorative treatments, and to abandon its inclusion of IVF, which is profoundly flawed both legally, therapeutically, and morally, and does nothing to address the underlying pathology. We also urge the Departments to engage in robust educational campaigns to this end, and with employers prioritize root-cause diagnostic care before invoking ART. There needs to be strong regulation to protect the health of women. Clearly, very specific provisions for informed consent addressing these dangers of ART, including IVF if part of the Final Rule, with limitations on the number of cycles of FSH drugs should be mandated by regulation. Furthermore, regulations should prevent the abuse of women as “gestational carriers,” which is an afront to the women and the children who are considered a commodity by these very procedures. Engendering multiple embryos during IVF beyond those who can be safely implanted, not only is dangerous to the unborn child, but also to their mothers. If IVF is included in the Final Rule, regulations must limit the number of embryos being engendered by the number of embryos that can safely be implanted and gestated unto birth. Engendering embryos with the intent to provide “spares” for eugenic or research purposes is an afront to humanity and should be prohibited; and current practices of selective reduction, especially after there has been a deliberate engendering of more embryos than can safely be gestated is an egregious afront to human life and should be prohibited. Embryo adoption does not resolve the quandary of embryos abandoned by their parents. The Proposed Rule does not mandate IVF coverage, nor does it mandate RRM coverage. However, the Final Rule should proactively protect the religious liberty and conscience rights of employers and employees by explicitly clarifying that employers who offer coverage of fertility services as an excepted benefit are free to exclude any fertility service from that coverage, including IVF. Children have a right to both a mother and a father and manipulating the engendering of life in a manner that denies a child that right should be prohibited. Thus, the Final Rule should also expressly recognize the right of religious and mission-oriented employers to limit benefits to married couples (that is, a married man and woman). There is the need to secure conscience protections for not only the employer but also the employee, especially if there is an objection to providing premiums that will contribute to specific methods of ART while providing for the desirable RRM. Similar objections under the Affordable Care Act led to provisions to isolate costs in premiums for objectionable procedures. The Final Rule should provide a mechanism for employees of organizations that include IVF, or any other objectionable service, to avoid subsidizing that service through their participation in the plan. The insurer should be required to identify the actuarial value of that coverage and ensure that this amount is excluded from the premiums of those who object. Lastly, we understand that some employers may choose to cover ART, but we urge the Departments to encourage employers and insurers to adopt a sort of sequencing in the design of their benefits making RRM-informed diagnostics and treatments a priority while leaving any costly ART as a last resort (if included at all). Such sequencing is consistent with an accurate understanding that true fertility treatments address, and not bypass, the underlying causative pathology. See attached.