01 Jul 2021 ‘Fertility Equality’ In the Air for Pride 2021

In a win for the international “fertility equality” movement, the French parliament voted on June 29, 2021, to give lesbians and single women the same rights as heterosexual coupled women to create families using assisted reproductive technology.

The legislation was a priority for the government of President Emmanuel Macron, who campaigned on the issue in 2017, The Guardian reports. However, as we reported earlier, the issue stalled in the face of pushback from religious conservatives.

With the overwhelmingly positive vote (326 to 115, with 42 MPs abstaining), France joins 10 other European countries that grant equal reproductive rights to same-sex and heterosexual couples and singles.

Switzerland Legalizes Sperm Donation for Lesbians

Among them is Switzerland. In December 2020, the Swiss Parliament voted overwhelmingly to legalize same-sex marriage. The amendment to the country’s Civil Code also allows married lesbian couples to use sperm donation for family building and extends the “presumption of parenthood” to both intended mothers who become parents using IVF and donor sperm.

As in France, the new Swiss law led to a conservative backlash, and opponents collected enough signatures to put the new law to a public referendum, scheduled for September 26, 2021. But a public opinion poll conducted in November 2020 showed 82 percent approval for same-sex marriage in Switzerland, where a type of civil partnership for same-sex couples has been legal since 2007.

The United States historically has been more favorable to assisted reproductive technology (ART) in general, becoming known internationally as a center for advanced reproductive technology and supportive services and as a leading destination for intended parents whose home countries prohibit surrogacy and other kinds of ART.

But not all parts of the U.S. are equal when it comes to assisted reproduction. Laws governing ART and parentage vary widely from state to state in the United States and continue to evolve in the wake of the nationwide legalization of same-sex marriage in 2015. In some states, religious and conservative voices have succeeded in limiting what types of assisted reproduction is legal, who is allowed to participate and under what circumstances.

Until recently, New York was one of two U.S. states (Louisiana remains) with a total ban on compensated surrogacy, forcing many New York intended parents to travel out of state for family-building services. That changed in February 2021, when New York’s Child Parent Security Act (CPSA), passed by the state legislature and signed into law in April 2020, took effect, establishing the rights of single people and couples, married or unmarried, to participate in compensated or “commercial” gestational surrogacy, establishing criteria for enforceable surrogacy agreements, and establishing or updating parentage procedures for all children born via assisted or third-party reproduction.

The Fertility Equality Movement

As Reuters reported in April 2021, “Most western European countries have over the last two decades introduced laws allowing couples of the same sex to marry, with the Netherlands leading the way in 2001. France legalized same-sex unions in 2013, followed by England and Wales in 2014, and Germany in 2017.”

But even as same-sex marriage has gained broad acceptance in much of the world, including in the United States, laws governing reproduction and parentage have lagged behind. Although the U.S. Supreme Court ruled in 2015 that the law must treat same-sex marriages and heterosexual marriages equally, gay and lesbian intended parents still face obstacles to establishing legal parentage that heterosexual couples do not.

Likewise, in many jurisdictions, LGBTQ people are treated differently than heterosexual people in access to reproductive health services.

As we wrote in December 2020, LGBTQ people continue to face inequities in access to assisted reproduction services and government-funded or private insurance coverage for fertility services in part based on the traditional legal definition of “infertility.”

“In Illinois, for example, the state’s Fertility Mandate requires that all group insurance policies covering more than 25 people that cover pregnancy also cover infertility diagnosis and treatment. But under the law, infertility is defined as ‘the inability to get pregnant after one year of unprotected sex or the inability to carry a pregnancy to term’—arguably criteria that would exclude gay men.”

Effective in January 2020, as we reported, a new law requiring large insurance plans (100+ individuals) to cover up to three rounds of IVF for women diagnosed with infertility, expanding fertility insurance to some 2.5 million New Yorkers. “But the new law continued to rely on an outdated definition of infertility, similar to Illinois’, to determine who is entitled to coverage.”

Even in jurisdictions with progressive reproductive and parentage laws, insurers and government agencies regularly deny LGBTQ individuals access to coverage for fertility treatment based on outdated and irrelevant biological definitions of fertility and reproduction. California, which passed a law in 2013 clarifying that fertility insurance must be equally available regardless of sexual orientation, still relies on an outdated definition of infertility that eliminates gay men and lesbians, referencing the inability to conceive “after a year or more of regular sexual relations without contraception.”

This clash between laws guaranteeing marriage equality and antiquated laws governing reproduction, parentage and family has created a new front in the ongoing struggle for LGBTQ rights: a movement for “fertility equality.” As The New York Times described last year, “Still in its infancy, this movement envisions a future when the ability to create a family is no longer determined by one’s wealth, sexuality, gender or biology.”

“This is about society extending equality to its final and logical conclusion,” Ron Poole-Dayan, founder and executive director of Men Having Babies, a New York nonprofit that helps gay men become fathers through surrogacy, told The Times. “True equality doesn’t stop at marriage. It recognizes the barriers L.G.B.T.s face in forming families and proposes solutions to overcome these obstacles.”

According to The Times report, the movement has the potential to change the way fertility treatment is funded, by influencing lawmakers and employers to require expanded coverage—changes that would benefit heterosexual couples and singles as well as LGBTQ intended parents.

The corporate world is already onboard, particularly in the tech arena, using fertility insurance benefits to help recruit the best and brightest young talent, The Times reports.

Poole-Dayan, and organizations like Gays with Kids, RESOLVE, Family Equality, Fertility Within Reach and other advocates are working to change the way governments and companies define infertility when determining whether or not to cover fertility services.

Rather than basing a diagnosis of infertility on the performance of sexual orientation—which inherently discriminates against LGBTQ people—the definition should be expanded to include “social infertility,” in which “specific life circumstances,” such as having a same-sex partner would prevent reproduction.

“We have this idea that infertility is about failing to become pregnant through intercourse, but this is a very hetero-centric viewpoint,” Catherine Sakimura of the National Center for Lesbian Rights told The Times. “We must shift our thinking so that the need for assisted reproductive technologies is not a condition, but simply a fact.”

Ultimately, advocates for fertility equality ask that insurance companies be required to cover assisted reproductive procedures such as egg and sperm donation, in vitro fertilization, embryo implantation and surrogacy services for all eligible patients, regardless of sexual orientation or gender.

The Times article describes 36-year-old Marine Corps Captain Miguel Aguilera, who served in Afghanistan and Iraq. Due to injuries sustained in combat, Aguilera is eligible for fertility services, such as in vitro fertilization, through the U.S. Department of Veterans Affairs. In 2018, Captain Aguilera, who is gay, began to consider taking advantage of his benefits to become a father. Instead, he was told that fertility services are only available to male soldiers who are married to women. Under VA policy, to receive fertility treatment, a couple must be married, one partner must have “an intact uterus and one functioning ovary,” and the other partner must “be able to produce sperm.” Gay men like Aguilera, who, after serving their country, might dream of becoming fathers someday, were excluded.

Just as state and local laws still lag behind the real-time existence of legal same-sex marriage, so the insurance and healthcare industries are still playing catchup to new reproductive technologies and family structures. The growing movement to ensure LGBTQ people have the same rights and options as heterosexual people to become parents and create families is certain to accelerate those changes, to the benefit of all.