Aetna’s Fertility Benefits Discriminate on the Basis of Sex. So We Sued.
Content warning: this post discusses infertility.
Emma Goidel has reached her limit. In the fall of 2020, she and her partner decided to add to their family through pregnancy. To do so, Emma—a queer woman—needed fertility services like intrauterine insemination (IUI) or in vitro fertilization (IVF). But Emma encountered a problem all too common for LBGTQ+ people seeking fertility services: her insurance company Aetna refused to cover her treatment.
Aetna’s reason for the denial was not that they don’t cover these fertility services—they have generous fertility benefits, including IUI and IVF. Instead, Aetna’s reason was that coverage is limited to people who are “infertile,” defined as the inability to conceive after 12 months of heterosexual sex or, if there is no male partner, 12 months of donor insemination. Because Emma does not have a male partner, Aetna required her to undergo 12 months of IUI—on her own dime—before they would begin covering any treatments.
How much money are we talking about?
Without insurance coverage, the costs of fertility services are astronomical. Not only must people pay for the actual procedures, but there are also the added costs of office visits and fertility medications and sperm donors and storage costs. Thus, while prices vary, they are consistently high. A single IUI cycle can cost anywhere from a couple hundred dollars to over $5,000. A single IVF cycle can cost several thousand dollars to over $30,000. Egg freezing can cost anywhere from $6,000 to $20,000 for one cycle. And the average cost of surrogacy ranges from $90,000 to $130,000. These prices are shocking, plus most people undergo several cycles to achieve a successful pregnancy.
These costs prevent many people from accessing fertility services. Those earning low wages or living in poverty do not have enough money to cover food and housing, let alone a thousand-dollar fertility enterprise. And the intersecting barriers of racism and sexism cause a disparate impact on LGBTQ+ people of color. For example, women overall have lower wages and higher poverty than men; and Black, Latina, and Native women face worse disparities. Further, LGBTQ+ people of color are more likely to live in poverty compared both to their white counterparts and their same-race straight counterparts. Finally, Black adults are much more likely to be single than white adults, as are LGTBTQ+ adults compared to straight adults, and fertility policies like Aetna’s entirely exclude unpartnered individuals from coverage.
Emma was fortunate in two ways: she was partnered and had the finances to pay for her fertility services. Between 2020 and 2021, Emma underwent a total of 6 IUI cycles and 1 IVF cycle. Her last IUI was successful, and Emma is currently 8 weeks pregnant. She is overjoyed to be pregnant yet outraged at having to spend nearly $45,000 for a successful pregnancy.
These policies discriminate and they are rampant.
Today, only 17 states have laws requiring insurance companies to either cover or offer fertility services. Emma is fortunate to live in New York, the only state in the country that both mandates coverage of fertility services and, as of this year, made clear that state law requires insurers to cover these services equally for LGBTQ+ individuals. Two other states—Illinois and California—are currently considering new laws to expand benefits.
Critically, federal law broadly prohibits discrimination in health care. Section 1557 of the Affordable Care Act (ACA) is the first federal civil rights law to prohibit 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. This means that health programs covered by Section 1557—including insurance companies—cannot treat people inequitably because they are lesbian, gay, bisexual, transgender, queer, nonbinary, intersex, asexual, or any other gender identity or sexual orientation, and they also cannot discriminate against people seeking pregnancy-related health care like fertility services.
What we’re doing about it.
We must protect access to health care, including fertility services, for all people. Aetna’s policy flies in the face of Section 1557 and state nondiscrimination law by relying on an outdated view of infertility that excludes LGBTQ+ people from equal coverage for fertility services. So we filed a class action lawsuit on behalf of Emma and all other similarly situated LGBTQ+ people in New York who are enrolled in Aetna’s discriminatory policies. We are challenging Aetna in court to change this policy in New York, and to send a message to insurance companies around the country that these discriminatory policies are illegal and must end.
If your insurance policy unfairly discriminates against LGBTQ+ individuals or couples seeking fertility treatments, you can contact attorneys with more information in three ways:
by phone: (202) 956-3077,
by email: [email protected], or
by filling out this google form: https://bit.ly/LGBTQFertilityLawsuit