H.R. 2049 — Access to Family Building Act

This section defines four terms for purposes of the Act: (1) "assisted reproductive technology," as given in section 8 of the Fertility Clinic Success Rate and Certification Act of 1992 (42 U.S.C. 263a–7(1)); (2) "health care provider," as any licensed or authorized entity or individual (e.g., physician, nurse practitioner) engaged in delivering such technology, including related information, counseling, referrals, or fertility treatment services—and including those who would be licensed but for providing such technology per section 4; (3) "patient," as any individual receiving or seeking such technology services; and (4) "State," to include the 50 states, the District of Columbia, Puerto Rico, U.S. territories and possessions, and political subdivisions.

This section states congressional findings that Congress has authority under the Commerce Clause, section 5 of the Fourteenth Amendment, and the Necessary and Proper Clause to protect access to fertility treatments and has previously exercised such authority. It declares the purpose of the Act to permit health care providers to provide, and patients to receive, assisted reproductive technology services without limitations or requirements that (1) are more burdensome than those on medically comparable procedures, (2) do not significantly advance reproductive health or service safety, or (3) unduly restrict access to such services.

This section establishes statutory rights under federal law for (1) individuals to access assisted reproductive technology (ART, i.e., procedures such as in vitro fertilization), continue ongoing ART treatments per written plans, and retain rights to reproductive genetic materials (subject to state safety regulations); (2) health care providers to perform or assist with ART and provide related evidence-based information; and (3) health insurance providers to cover ART—without prohibition, unreasonable limitation, or interference (e.g., due to financial cost or health risks). It authorizes the Attorney General to sue states, localities, officials, individuals, or entities enforcing violating limitations; provides a private right of action for affected individuals or entities and for health care providers (on behalf of themselves, staff, or patients) against state or local officials; grants federal district courts jurisdiction without exhaustion of remedies; permits case removal to federal court; and requires courts to award costs and attorney’s fees to prevailing plaintiffs (with no fee liability for non-frivolous actions). The section preserves state or local health and safety regulations for medical facilities if they advance patient safety without less restrictive alternatives and does not affect state laws on insurance coverage of ART. Not later than one year after enactment, the Secretary of Health and Human Services must promulgate implementing regulations.

This section declares the Act supreme over all conflicting federal and state laws (statutory, common law, or otherwise), whether adopted before or after enactment, prohibiting their administration, implementation, or enforcement notwithstanding other federal laws including the Religious Freedom Restoration Act. It subjects subsequently enacted federal statutes to the Act unless they explicitly reference an exemption. The section further authorizes individuals or entities facing causes of action for limitations or requirements that violate the Act to raise the Act as a defense, in addition to remedies under section 4(b).

This section establishes a severability clause, providing that if any provision of the Act or its application to any person, entity, government, or circumstance is held unconstitutional, the remainder of the Act and its application to others shall not be affected.