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Lesbian couples sue over fertility treatment rules

15 August 2016
Appeared in BioNews 864

Three same-sex female couples are suing the US state of New Jersey for what they claim are discriminatory rules regarding the funding of fertility treatment.

The plaintiffs complain that a state insurance mandate from 2001 unfairly discriminates against non-heterosexual women. The mandate requires insurers to fund fertility treatments, but only for couples who can demonstrate infertility through 'two years of unprotected sexual intercourse'.

Two of the plaintiffs, Erin and Marianna Krupa, have spent more than US$25,000 on failed treatments after their insurer, Horizon Blue Cross Blue Shield, refused to pay. The plaintiffs argue that the insurance mandate is unconstitutional as it discriminates on the basis of sex and sexual orientation and, owing to the high costs of fertility treatments, they now have to choose between 'starting a family and financial security'.

Grace Cretcher, lawyer for the plaintiffs, told the New York Times: 'These women are already going through what can be a difficult experience, and they have the added stress of affording it financially and the added insult of being treated like a second-class citizen.'

New Jersey is one of fifteen US states that require insurers to fund treatment for infertility, defined as the inability to impregnate another person, to carry a pregnancy to live birth or to conceive after two years of unprotected sex. Even though one of the couples could demonstrate one year of unsuccessful home insemination, and the plaintiffs also presented medical evidence of their fertility status – including diagnoses of endometriosis and polycystic ovaries – their circumstances were said to fall outside the definition of infertility as having unprotected sexual intercourse with a man for two years.

Cretcher contends that this definition violates the rights of non-heterosexual women, adding: 'The specific wording of the New Jersey mandate is particularly egregious and one of the most specific and exclusionary.'

The landmark case is thought to be the one of the first to challenge the legal definition of infertility, and the plaintiffs hope to make it easier for lesbian couples to access fertility treatment.

The claim form states: 'This civil rights case is about family and the right of all New Jersey women who dream of becoming mothers to access the reproductive healthcare they need to realise that dream on an equal basis, regardless of their sexual orientation.' They are also seeking compensation for the 'mental anguish' they have experienced as a result, they allege, of the State's actions.

Susan Sommer from Lambda Legal, a LGBT (lesbian, gay, bisexual, transgender) rights group based in New York, said that insurance rules have to be updated to grant same-sex couples greater equality. She told Reuters: 'This lawsuit reflects the frustration and indignities lesbian and gay people endure because state laws and insurance rules continue to presume the only parents are heterosexual parents.'

California and Maryland have updated laws to grant same-sex couples the same entitlement to insurance-funded fertility treatment. The New Jersey Legislature has proposed changing the definition of infertility, but has thus far not done so.

'I'm not sure if there was a lot of thought given to the implications of what this would cause and how many New Jerseyans it would exclude,' Dr William Ziegler, director of the Reproductive Centre of New Jersey, told the New York Times. 'It's a double standard. It discriminates against same-sex couples because they don't have the biological equipment to have a baby the way a heterosexual couple does.'

The New Jersey legislature has refused to comment on 'pending or ongoing litigation'. A spokesman for Horizon Blue Cross Blue Shield pointed out that the legal action centres on the definition of infertility under New Jersey state law and not the insurer, which later agreed to pay for treatment for one of the plaintiffs. 'Horizon is committed to equality, values our LGBTQ (lesbian, gay, bisexual, transgender, queer) members, and is sensitive to their unique healthcare challenges and needs,' the company said.

4 Lesbians Sue Over New Jersey Rules on Fertility Treatment
New York Times |  8 August 2016
Four lesbians sue U.S. state for insisting sex with a man proves infertility
Reuters |  10 August 2016
Krupa v. Badalato
New Jersey District Court (complaint) |  2 August 2016
Lesbian Couple Challenges Insurance Bar to Fertility Treatment
New Jersey Law Journal |  2 August 2016
Lesbian couples are told they can't get fertility treatment through their insurance unless they have unprotected sex with a man first
Mail Online |  11 August 2016
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