By Nicole Moschella, JHBL Staff Member
Introduction
In the United States, over 20 million Americans identify as LGBTQ+ and one-third are raising children.[1] Assisted Reproductive Technology (hereinafter “ART”) makes it possible for same-sex couples, single people, and people with infertility to procreate.[2] The cost of giving birth, including pregnancy, delivery, and postpartum care, is $18,865; those with a health insurance plan pay $2,854 out-of-pocket.[3] Based on insurance companies’ definition of infertility, same-sex couples must pay an additional cost to get pregnant and qualify for coverage.[4] While heterosexual couples can meet the definition of infertility to receive coverage, insurance policies create financial burdens for same-sex couples using ART.[5] The additional cost is extremely prohibitive, totaling up to $30,000 per cycle for some ART treatments.[6] The discrepancy between the cost of ART for heterosexual couples compared to same-sex couples is the subject of several discrimination lawsuits.[7] Insurance policies must be inclusive of same-sex couples by removing their heteronormative standards to provide equal access to fertility treatments.[8]
Fertility Services and Insurance Coverage
Infertility effects 6.1 million couples each year.[9] Fertility services, which include diagnostic services, treatment services, and fertility preservation, are used to assist these couples with conception and pregnancy.[10] Same-sex couples utilize the fertility treatment services of intrauterine insemination (“IUI”) and in vitro fertilization (“IVF”).[11] IUI is a low-tech procedure where sperm cells are directly inserted into the uterus at ovulation.[12] IVF uses a combination of medicines and surgical procedures to help sperm fertilize an egg and insert that fertilized egg into the uterus.[13] Due to their lifestyle and lack of access to biological means of reproduction, same-sex couples are commonly referred to as “socially infertile” and must rely on IUI and IVF.[14]
Many fertility treatments are not considered a medical necessity by insurance companies; therefore, these treatments are not typically covered by private plans or Medicaid.[15] Treatments are viewed as optional, due in part to societal views of reproduction and other alternatives for having children, such as adoption.[16] Given this rationale, insurance coverage for fertility treatment is not mandated in most states.[17]
When fertility treatments are covered by an insurance plan, infertility is often described as inability to conceive after 12 months of heterosexual sex or, if there is no male partner, 12 months of donor insemination.[18] This definition is based on the American Society of Reproductive Medicine and the World Health Organization’s definitions of infertility: a disease of the male or female reproductive system defined by the failure to achieve a pregnancy after 12 months or more of regular unprotected sexual intercourse.[19] Because both of those definitions are framed within the context of a heteronormative society, same-sex couples have to undergo one year of ART before qualifying for coverage under the prevailing infertility standard.[20]
Unaffordable Costs of ART
Direct costs of ART are high, especially when not offset by insurance.[21] These costs include paying for the procedure, office visits, fertility medications, and sperm donations and storage costs.[22] A single IUI can cost between several hundred dollars to over $5,000 and a single IVF cycle can cost between several thousand dollars to over $30,000.[23] Same-sex couples tend to spend at least $30,000 to be eligible for coverage as multiple rounds of IUI or IVF may be necessary for conception.[24] This additional financial consideration to having children is prohibitive, and several same-sex couples have resorted to taking out personal loans or crowdsourcing the necessary funds to afford starting a family.[25]
Discrimination Claims
Section 1577 of the Affordable Care Act prohibits discrimination in health care on the basis of race, color, national origin, age, disability, and sex, which includes discrimination based on sexual orientation, gender identity, and pregnancy.[26] Under this section, insurance companies cannot treat people inequitably because of their sexual orientation and they cannot discriminate against people seeking health care services such as fertility treatments.[27] Insurance companies like Aetna and Blue Cross Blue Shield have been sued for discriminatory language in defining infertility, limiting the rights of queer people to start families, and for only offering immediate fertility coverage with no out-of-pocket expenses to heterosexual couples.[28] The additional, discriminatory cost to same-sex couples is labeled a “queer tax.”[29] Insurance companies who do not change their coverage requirements may continue to face litigation from same-sex couples and others who cannot meet their definition of infertility.[30]
Legislative Action to Change Insurance Policy Standards
An inclusive definition of infertility is needed to provide better access and coverage of fertility treatment to same-sex couples.[31] State mandates framed by inclusive definitions of infertility can increase access to needed fertility treatments for same-sex couples because utilization of fertility treatment is higher in states where coverage is mandated.[32] Data from the Centers for Disease Control and Prevention have shown use of assisted reproductive technology in states with comprehensive coverage was 1.5 times higher than the national average.[33] After a coverage mandate was passed in New York in 2021, former Governor Andrew Cuomo announced “No New Yorker should be denied the opportunity to become a parent, nor the joys of raising a child, because of their sexual orientation, and this change reflects what we as New Yorkers know to be true: that love is what makes a family, that inclusivity is our strength and that the law should work for all New Yorkers.”[34] Insurance policy changes and state mandates can promote inclusivity and allow same-sex couples an equal opportunity to start a family.[35]
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHBL or Suffolk University Law School.
Nicole is a second-year law student at Suffolk University Law School. She is interested in providing legal aid to underrepresented and underserved communities. She received dual bachelor’s degrees in English and Business Management at the University of Massachusetts Amherst in 2018.
[1] See Logan March, Conceiving Equality: Eliminating Sex Discrimination from Fertility Insurance Mandates, 33 Ann. Health L. Advance Directive 185, 186 (2023).
[2] See Mark Fadel, Insurance Practices and Disparities in Access to Assisted Reproductive Technologies, 19 Fl. Coastal L. Rev. 51, 51 (2018).
[3] See Elizabeth Rivelli, How Much Does It Cost To Have A Baby? 2024 Averages, Forbes Advisor (Jan. 3, 2023), https://www.forbes.com/advisor/health-insurance/average-childbirth-cost/ [https://perma.cc/6NSF-QHJB].
[4] See Aetna’s Fertility Benefits Discriminate on the Basis of Sex. So We Sued. Nat’l Women’s L. Ctr. (Sept. 14, 2021), https://nwlc.org/aetnas-fertility-benefits-discriminate-on-the-basis-of-sex-so-we-sued/ [https://perma.cc/8ZYY-XM3X]; March, supra note 1, at 191.
[5] See March, supra note 1, at 191.
[6] See Aetna’s Fertility Benefits Discriminate on the Basis of Sex. So We Sued, supra note 4.
[7] See id.; see also Sarah Leadem, Access to Fertility-Insurance Coverage for LGBTQ Employees Post-Bostock, OnLabor (May 16, 2022), https://onlabor.org/access-to-fertility-insurance-coverage-for-lgbtq-employees-post-bostock/ [https://perma.cc/E6Z3-HHTT]; Mallory Hacket, Aetna updates fertility coverage following claims of LGBTQ+ discrimination, Healthcare Finance (Sept. 16, 2021), https://www.healthcarefinancenews.com/news/aetna-updates-fertility-coverage-following-claims-lgbtq-discrimination [https://perma.cc/8A3V-ELNA]; Devin Dwyer & Patty See, LGBTQ couples push for ‘fertility equality’ in family-building benefits, ABC News (June 27, 2023), https://abcnews.go.com/US/lgbtq-couples-push-fertility-equality-family-building-benefits/story?id=100243800[https://perma.cc/9XMD-LCVT].
[8] See Sarah Leadem, supra note 7; Nicole Rank, Barriers for Access to Assisted Reproductive Technologies by Lesbian Women: The Search for Parity within the Healthcare System, 10 Hous. J. Health L. & Pol’y 115 (2009).
[9] See Rank, supra note 8 at 116.
[10] See Gabriela Weigel et al., Coverage and Use of Fertility Services in the U.S., KFF (Sept. 15, 2020), https://www.kff.org/womens-health-policy/issue-brief/coverage-and-use-of-fertility-services-in-the-u-s [https://perma.cc/E7UV-8QM6]. Diagnostic services include lab tests (progesterone, ovarian reserve, thyroid studies, prolactin), semen analysis, imaging (pelvic ultrasound, hysterosalpingogram), and diagnostic procedures (laparoscopy, hysteroscopy). Id. Treatment services are medications (clomid/ clomiphene citrate), surgery (laparoscopy, hysteroscopy), intrauterine insemination, and in vitro fertilization. Id. Fertility Preservation is cryopreservation, also known as freezing eggs, sperm, or embryos. Id.
[11] See Devin Dwyer & Patty See, supra note 7.
[12] See What is IUI?, Planned Parenthood https://www.plannedparenthood.org/learn/pregnancy/fertility-treatments/what-iui [https://perma.cc/3V2S-GF2S].
[13] See What is IVF?, Planned Parenthood https://www.plannedparenthood.org/learn/pregnancy/fertility-treatments/what-ivf [https://perma.cc/FF46-Y7TP].
[14] See Rank, supra note 8, at 121.
[15] See Weigel, supra note 10.
[16] See Rank, supra note 8, at 131.
[17] See Weigel, supra note 10. 15 states mandate insurers to cover some infertility services, 2 states mandate insurers offer at least one plan covering some infertility services, and the remaining states do not have any mandates. See id. In states where insurers are mandated to cover fertility services, coverage is limited by only applying to certain insurers, types of plans, and treatments. See id. These mandates also still allow for monetary caps to be placed on coverage. Id.
[18] See Aetna’s Fertility Benefits Discriminate on the Basis of Sex. So We Sued, supra note 4.
[19] See March, supra note 1, at 189.
[20] See id. at 191.
[21] See Mark Fadel, Insurance Practices and Disparities in Access to Assisted Reproductive Technologies, 19 Fl. Coastal L. Rev. 51, 55 (2018).
[22] See Aetna’s Fertility Benefits Discriminate on the Basis of Sex. So We Sued., supra note 4.
[23] See id.
[24] See Leadem, supra note 7.
[25] See Joshua Zitser, High surrogacy costs and insurance denials for IVF treatment have forced gay couples to crowdfund to have kids, Bus. Insider (May 29, 2023), https://www.businessinsider.com/gay-couples-surrogacy-cost-insurance-denial-crowdfunding-babies-lgbtq-2023-5 [https://perma.cc/V79D-MBNT]; see also Bailey Schulz, ‘Still a lot of hurdles’: For LGBTQ+ couples, the path to in vitro fertilization is harder, USA Today (June 13, 2023), https://www.usatoday.com/story/money/2023/06/13/ivf-cost-higher-for-lgbtq-couples/11135417002/ [https://perma.cc/K3RN-KBL5].
[26] See Aetna’s Fertility Benefits Discriminate on the Basis of Sex. So We Sued, supra note 4. Discrimination claims can also be brought against employers under Title VII of the Civil Rights Act, prohibiting sex discrimination in health benefits provided by employers. See Leadem, supra note 7.
[27] See id.
[28] See id.; Schulz, supra note 25.
[29] See Leadem, supra note 7.
[30] See id.
[31] See Rank, supra note 8, at 143; see also Leadem supra note 7.
[32] See Weigel, supra note 10.
[33] See id.
[34] See Governor Cuomo Announces New Actions to Expand Access to Fertility Coverage for Same Sex Couples as Part of 2021 Women’s Agenda, N.Y. St. Dept. of Fin. Servs. (Feb 11, 2021), https://www.dfs.ny.gov/reports_and_publications/press_releases/pr202102111 [https://perma.cc/4QTD-HMZF].
[35] See id.