State insurance laws and health plan policies on fertility coverage are under the microscope of lawmakers and fertility organizations seeking to eliminate what they see as discriminatory obstacles to health care for LGBTQ+ individuals.
A former New York City employee and his husband have filed a lawsuit against the city, arguing its coverage policy for in vitro fertilization discriminates against gay male couples. Fertility advocates and attorneys say this case and others like it offer the opportunity to renew attention on state laws and insurance policies that exclude same-sex couples and other LGBTQ+ individuals in their definition of “infertility.”
An updated definition from the American Society for Reproductive Medicine broadening the scope of people affected by infertility is a first step to expanding care access, advocates and attorneys say. Seven states and the District of Columbia have laws that include either the ASRM definition or language close to it guaranteeing coverage to individuals beyond heterosexual couples.
But some of these states still impose additional hurdles for gay couples and others seeking IVF coverage, including that they first pay out of pocket for intrauterine insemination, or IUI, before they are eligible for benefits.
“We need to be expanding access and protecting people’s rights to build their families and to access the medical treatments they need to build their families,” said Betsy Campbell, chief engagement officer at RESOLVE: The National Infertility Association.
State Laws
In total, 21 states and the District of Columbia have fertility insurance coverage laws, and 15 of those include IVF coverage, according to RESOLVE. Fertility coverage has typically been limited, due in part to costs—IVF and other assisted reproductive technologies can range from $10,000 to $18,000 per cycle.
Most states that do offer benefits have relied on a “heteronormative definition” of infertility, allowing coverage only after couples go through “a certain number of months of unprotected intercourse” without getting pregnant, Campbell said. This wouldn’t apply to same-sex couples or to individuals trying to start families on their own.
The ASRM revised its definition of infertility in October 2023 as the “inability to achieve a successful pregnancy based on a patient’s medical, sexual, and reproductive history, age, physical findings, diagnostic testing, or any combination of those factors.”
Infertility can also be described as the “need for medical intervention” to “achieve a successful pregnancy either as an individual or with a partner.”
More inclusive coverage mandates have been adopted by Colorado, Delaware, Illinois, Maine, Maryland, New Jersey, New York, and the District of Columbia.
RESOLVE is working on updating definitions of infertility in existing insurance coverage laws in states like California and Massachusetts. The group is also hoping to get more inclusive coverage mandates in states that don’t guarantee fertility coverage, including Minnesota, Oregon, and Pennsylvania.
The 2024 legislative session in Minnesota recently ended without action on a bill (HF1658/SF1704) to require coverage for infertility treatment, including for LGBTQ+ individuals. The legislation’s Senate sponsor, Sen. Erin Maye Quade (D), has said she was motivated to develop the bill after she and her wife spent $12,000 on fertility treatment to have their daughter.
State Rep. Jeff Brand (D), who sponsored the bill in the Minnesota House, said in an interview that the cost of the legislation “has always been a concern on both sides of the aisle.”
A January 2023 report from the Minnesota Department of Commerce found the version of the bill introduced that year would have an average monthly cost increase of $1.30 per health plan member in the first year and increase to $2.20 per member in year 10.
Brand said he’s hopeful the two lawmakers will be able to continue work on the bill when legislators return after the November elections.
But the work shouldn’t stop there, said attorney Rich Vaughn, founder of the International Fertility Law Group. In some of the states with updated definitions of infertility, they still require non-heterosexual couples to pay first for IUI or other services for a certain period before they’re eligible for coverage.
Maryland’s law, for example, says for patients whose spouse is of the same sex, there must be three attempts of artificial insemination over the course of one year that failed to result in a pregnancy before they can qualify for IVF coverage.
When coverage isn’t available, it can “force people to take chances and take risks with their fertility procedures that they wouldn’t ordinarily because it’s so expensive,” Vaughn said, noting patients “might transfer two embryos as opposed to just doing one, because they don’t have the money to do another cycle.”
“If you actually cover it from the beginning, people are taking less risks and also don’t have to go through these procedures as often,” Vaughn said.
These issues also affect heterosexual couples, said Nesta Johnson, a family law attorney with the National Center for Lesbian Rights. Johnson is bisexual and a cancer survivor who would need an egg donor to have a child with her husband.
“Many different-sex couples also are infertile because of one partner’s medical issue,” she said, “and no one would tell that person’s partner to just go have kids with somebody else.”
Court Cases
At least two lawsuits against
The first, Kulwicki v. Aetna, alleges the insurance company’s policy of requiring members under 35 to undergo either 12 months of unprotected sex or 12 cycles of IUI discriminates against hom*osexual couples who are unable to conceive on their own.
Atlanta nurse Tara Kulwicki said the policy would force her to pay out-of-pocket for IUI, a requirement that doesn’t apply to heterosexual couples. The complaint is seeking nationwide damages for all non-heterosexual women subject to Aetna’s infertility definition.
The second case, Berton v. Aetna, is also challenging Aetna’s infertility policy as it applies to lesbian couples and is seeking a national injunction for all Aetna members who are subject to the policy and were assigned female at birth.
Aetna said it couldn’t comment on pending litigation.
Surrogates pose a number of additional questions for same-sex male couples. In response to the lawsuit from the former New York City employee and his husband, the city argues the couple is essentially asking to cover a surrogate, which they deny.
Jason Angel, a psychologist in San Francisco, teamed up with lawyers and lobbyists to change California state law after he and his husband used IVF to have their 18-month-old twins. His husband’s insurance covered IVF services like egg retrieval, but the insurance policy the couple bought for their surrogate required them to pay back the medical costs of the pregnancy—even while the insurer kept the premiums they paid.
“It’s pretty squirrelly and devious what the insurance companies have done,” he said.
Federal Legislation
Lawmakers in Congress have introduced a flurry of bills to preserve access to IVF in the wake of the recent Alabama Supreme Court ruling that IVF embryos are considered children, but just one appears to address the allegations of unequal treatment for LGBTQ+ employees.
The Access to Infertility Treatment and Care Act, led by Rep. Rosa DeLauro (D-Conn.) in the House (H.R. 4731) and Sen. Cory Booker (D-N.J.) in the Senate (S. 2386), defines infertility as “a person’s incapacity for reproduction either as an individual or with his or her partner,” including “based on medical, sexual and reproductive history.”
The bill also requires group and individual health plans that offer obstetric services to cover “treatment of infertility determined appropriate by the treating provider.”
DeLauro said in a statement the bill would allow everyone to “grow their family, regardless of their health insurance.”
But the fetal personhood debate fueled by the Alabama decision is dividing Democrats and Republicans and overshadowing the LGTBQ+ issues. No Republicans have signed onto the DeLauro and Booker bill.
Booker’s bill is included along with a measure (S. 3612) from Sen. Tammy Duckworth (D-Ill.) to guarantee IVF access in legislation that Senate Democrats aim to hold a vote on.
