LGBTQ couples push for ‘fertility equality’ in family-building benefits

(NEW YORK) — For Emma Goidel and Ilana Caplan, building a family using assisted reproductive technology was never going to be easy, but the couple says they never imagined the financial costs they’d face simply because of who they are.

“We looked really closely at our insurance and we saw, oh my God, Aetna covers fertility procedures. But then when we read the fine print, we saw – wait a minute, this coverage is only for people having heterosexual sex,” said Goidel, who lives in New York City.

As a growing number of same-sex couples turn to intrauterine insemination (IUI) and in vitro fertilization (IVF) to have children, many say they’re encountering entrenched inequality in how benefits are provided by health insurers and employers.

While insurance companies in more than a dozen states offer no-cost fertility treatments for straight couples who struggle to get pregnant, they often refuse to cover those same services for lesbian or gay couples until they’ve paid out of pocket for up to a year.

Goidel and Caplan spent nearly $50,000 of savings to have their son Avi, who is a year old. None of the expenses for IUI or IVF were reimbursed by the insurer, Aetna, they say.

“How is it OK to say if you’re straight and your partner can’t get you pregnant, you come into the doctor and we’ll cover your treatment, but if you’re a queer and your partner can’t get you pregnant, too bad you’re going to pay?” said Goidel.

One-in-three American adults say they’ve used fertility treatments, like IUI or IVF, to grow their families or know someone who has, according to Pew Research Center, and many have spent thousands of dollars out of pocket in the process.

In places where fertility benefits are offered or required, LGBTQ people can be disadvantaged.

“Only 14 states provide coverage on private insurance plans for fertility health care, [but] only three states have fertility insurance laws that inclusively cover LGBTQ people,” said Polly Crozier, director of family advocacy, GLBTQ Legal Advocates & Defenders (GLAD).

“When there’s not access to fertility health care in your state, it particularly hits LGBTQ people hard, and then even in the states that do have access to fertility health care, LGBTQ people there face different standards. There are different rules for those families. It’s just not equal,” Crozier said.

Advocates say the fight for “fertility equality” is emerging as a key legal battleground. More than 100,000 same-sex couples are raising children in this country, according to government data, and increasing numbers are looking to grow their families, advocates say.

“We’ve always wanted to have kids. We knew when we got married that we wanted to have a family,” said Goidel, 33, who wed Caplan, 33, in 2017.

After having their first child through self-funded intrauterine insemination using donor sperm, in 2020 the couple consulted with their newly acquired Aetna health plan about fertility coverage for a second pregnancy.

The plan stipulated a diagnosis of infertility in order to qualify, they said. For Goidel and Caplan, that meant having to first attempt at least 12 months of IUI treatment — paid out of pocket — before any insurance coverage would kick in.

They got pregnant using IUI after five prior attempts, one of which resulted in a miscarriage, and one cycle of IVF, which also resulted in a miscarriage.

“My partner can’t get me pregnant. Whether that’s because she doesn’t have the gametes or something’s going on internally with me. No one makes that distinction when you’re a straight couple,” Goidel said.

Goidel brought a federal class-action lawsuit against Aetna in 2021, accusing the insurance company of sex discrimination for denying equal access to fertility treatment.

In court documents, the company denies the claims, saying Goidel did not meet requirements for fertility coverage under her health plan.

“Aetna is committed to equal access to reproductive health coverage for all members,” the company told ABC News in a statement on the Goidel case. “We offer infertility coverage for our plan sponsors, which aligns with our publicly available guidelines, individual benefit plans, and regulations. We have a history of strong support for the LGBTQ+ community, which we continue to build on. We continually evolve our benefit coverage guidelines based on evidence-based clinical information and member safety as a top priority.”

The case is currently pending in federal district court.

For gay men who want their own kids through surrogacy, it can be even more complicated and costly.

Corey Briskin, 34, and Nicholas Maggipinto, 37, of Brooklyn, New York, say neither their health insurance nor Briskin’s employer, the City of New York, would cover any costs of fertility treatment needed to get a surrogate pregnant.

“There’s just no way that that’s not some form of discrimination,” Maggipinto said in an interview.

Both men are attorneys.

“The No. 1 hurdle that every same-sex couple faces is that they can never meet the definition of infertility, which is the threshold qualifier for covered IVF,” he said.

Briskin and Maggipinto filed a class-action discrimination complaint in April 2022 with the Equal Employment Opportunity Commission (EEOC), seeking a nationwide order that employers must extend fertility benefits to LGBTQ employees.

The City of New York provides IVF benefits for heterosexual employees who have faced difficulty getting pregnant and are deemed infertile but does not cover LGBTQ employees because they cannot meet the infertility criteria.

The City, which declined an interview with ABC, argues the charge should be dismissed, telling the EEOC in a legal filing that “practically all” employer-provided health insurance nationwide does not cover IVF for surrogate pregnancies, “consistent with the law” and is “not discriminatory.”

The complaint remains pending at EEOC.

“I think there’s a fair argument that that’s sex discrimination, sexual orientation discrimination, and frankly, just bad business,” Crozier said.

A small growing number of companies are providing benefits for family building outside of insurance plans, some chipping in for IVF and others offering to help cover the cost of adoption.

Both couples — Briskin and Maggipinto, and Goidel and Caplan — said they respect adoption as an option for same-sex couples to build families but not one that should be imposed on them.

“There’s nothing wrong with adoption, and for many people, that is a really wonderful option and maybe even their preference,” said Briskin. “But at the same token, no one should tell us that we should build our family that way.”

As the legal cases play out, both families hope change is on the horizon.

“We are hopeful that whatever becomes of this, there will be a change for the better for people who are similarly situated to us,” Briskin said.

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