IFLG - Fertility Insurance Laws Defray Costs of Assisted Reproduction But Exclude Gay Men - Rich Vaughn

Fertility Insurance Laws Defray Costs of Assisted Reproduction But Exclude Gay Men

Nineteen U.S. states have enacted laws that require insurance companies to offer coverage for in vitro fertilization and other types of fertility treatments—a ray of hope for individuals for whom the high costs of assisted reproduction can be a barrier to parenthood.

But even as new laws prohibit discrimination based on gender or sexual orientation, insurers have found a “loophole” that allows them to deny fertility treatment coverage to men who are in a same-sex relationship—based on the law’s definition of “infertility.”

Now one couple has taken Blue Cross Blue Shield of Illinois to court, demanding the company provide them the same coverage for egg donation and IVF that it provides to single women and lesbians.

When Tee Lam and Adam Motz decided they wanted to become parents, they were fortunate to have loving friends ready and willing to help. Motz’s friend since high school agreed to be an egg donor; Lam’s longtime friend offered to be a surrogate.

All lights seemed to be green on Lam and Motz’s path to parenthood, until the couple submitted a $15,000 claim for costs of prescriptions for egg donation to their health insurance carrier, Blue Cross Blue Shield of Illinois (BCBSIL). To their surprise, their claim was denied, and an adjuster, in a recorded call, told Motz it was because they were two gay men planning to use a surrogate.

In the wake of coverage from NBC 5 Chicago, BCBSIL paid the couple $2,000, a payment Motz said was not related to their $15,000 prescription claim. The two are continuing to contest the claim denial.

BCBSIL said in a statement it is “committed to providing quality health care to members consistent with terms of their benefit coverage, regardless of sexual orientation.”

All Fertility Insurance Is Not Created Equal

 

The BCBSIL complaint highlights the reality that, even as more states require insurers to provide, or at least offer, coverage for fertility treatment, what is covered and who is eligible continues to vary from state to state and from employer to employer, as we wrote earlier.

According to RESOLVE, 19 states currently have some form of fertility insurance mandate, including 13 that cover IVF and 10 that cover fertility preservation due to iatrogenic infertility, or infertility caused by a medical treatment.

Many of the discrepancies in access and coverage hinge on the traditional 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.

As part of their appeal to BCBSIL, Motz and Lam were required to submit a letter from Dr. Mary Wood Molo of Chicago’s Center for Reproductive health explaining why the two men were unable to conceive. Molo told NBC5 that although insurance policies typically cover costs for lesbians who undergo assisted reproduction, she did not know of any insurers who would provide coverage for a gay male couple. “For hetero and lesbian couples, yes, but not for same-sex male couples—with any insurance,” Wood Molo said.

After the U.S. Supreme Court legalized same-sex marriage in 2015, states began the slow process of changing laws governing reproduction and parentage to ensure they treated LGBTQ people the same as heterosexual people. In some conservative states, legislators have used gender-specific language within the laws to continue to discriminate.

And the insurance industry, which has always opposed laws that mandate specific types of coverage, appears to use legalistic definitions to deny coverage, even as it promises not to discriminate based on sexual orientation.

Even in Maryland, which has arguably the most inclusive fertility insurance mandate in the country, the language of the law still eliminates any possibility of fertility insurance coverage for gay males.

Prior to May 2015, Maryland law required that insurers provide treatment for fertility insurance only after a couple had a minimum two-year history of infertility, which insurers typically interpreted to mean two years of having intercourse without conceiving. Only fertility treatments using the husband’s sperm could be insured.

The new Maryland law specifically prohibits insurers that cover other types of fertility treatment from applying that restriction for same-sex couples. But the language of the law’s “Definition of Infertility/Patient Requirements” leaves no possibility the mandate for coverage could be applied to a gay male couple:

For a married patient, the patient and the patient’s spouse have a history of involuntary infertility, demonstrated by a history of:

  • if the patient and the patient’s spouse are of opposite sexes, intercourse of at least 1 year’s duration failing to result in pregnancy; or
  • if the patient and the patient’s spouse are of the same sex [emphasis ours], three attempts of artificial insemination over the course of 1 year failing to result in pregnancy…

It is the law’s one and only reference to same-sex couples, and it is clearly not applicable to gay men.

New York Fertility Insurance Law Relies on Outdated Definition of Infertility

New York is one of the most recent states to enact a fertility insurance mandate, expanding access to coverage to about 2.5 million people. But the new law continued to rely on an outdated definition of infertility, similar to Illinois’, to determine who is entitled to coverage. As we predicted in our earlier report, “Because of this definition, additional fine-tuning will be needed—either via legislation or court cases—to ensure that gay men or single men are not unfairly discriminated against.

Even more progressive states, such as California, which passed a law in 2013 clarifying that the fertility insurance coverage mandates should be applied equally regardless of sexual orientation, continue to rely on outdated and limiting definitions of infertility. In California law, infertility is defined as “the presence of a demonstrated condition recognized by a physician and surgeon as a cause of infertility or the inability to conceive… after a year or more of regular sexual relations without contraception.” Clearly, the definition was not intended to apply to gay males.

In contrast to the New York law, which requires a certain group of employers to provide coverage for infertility treatments, California requires only that insurers offer the insurance (which does not include IVF); employers decide whether or not to actually provide the coverage to their employees.

State by state, new laws requiring insurance coverage for infertility are making assisted reproductive services more affordable and accessible for more intended parents. But while lawmakers may intend to ensure coverage benefits all people regardless of sexual orientation, they continue to leave eligibility rules largely up to the health plans themselves. So even though states such as New York and California prohibit discrimination in offering coverage for infertility, the coverage itself is discriminatory because its definition of infertility eliminates gay men from eligibility. The result is injustice that will no doubt be remedied state by state, lawsuit by lawsuit, until state legislatures recognize that reproductive rights are human rights, regardless of gender or orientation.

I am quoted in this report by Dan Avery of NBC News, which has done a great job shedding light on Tee and Adam's story and the issue of insurance coverage for assisted reproduction.

For more information about becoming a parent through assisted reproduction technology and the legal issues involved, contact our experienced IFLG team of fertility lawyers and paralegals. 

Rich Vaughn
Richard Vaughn
rich@iflg.net

Attorney Rich Vaughn is founder and principal of International Fertility Law Group, one of the world’s largest and best-known law firms focused exclusively on assisted reproductive technology, or ART, including in vitro fertilization (IVF), surrogacy, sperm donation or egg donation. Rich is co-author of the book “Developing A Successful Assisted Reproduction Technology Law Practice,” American Bar Association Publishing, 2017.

Peiya Wang
PEIYA WANG(王培娅)
Paralegal (律师助理)

Peiya Wang joined IFLG as a paralegal in 2015, where she manages surrogacy, egg donation and parental establishment cases and provides translation services for many of IFLG’s international clients. Peiya moved to the United States in 2012 to attend Northeastern University in Boston, Massachusetts, receiving a Master of Science degree in Global Studies and International Affairs in 2014. Peiya moved to Los Angeles in 2015, received her paralegal certification from UCLA Extension, and obtained her second Master of Science degree in Legal Studies from Loyola Law School. Peiya relocated back to her hometown, Beijing, China in 2019 and works from IFLG’s Beijing office. When away from the office, Peiya is a dragon boat paddler and a ballroom dancer, where she favors Rumbas and Cha-chas. She is fluent in Mandarin and English.

Katie Deaquino
KATIE DEAQUINO
Senior Paralegal

Katie is a Senior Paralegal with IFLG and has dedicated over sixteen years to the areas of surrogacy and reproductive law. She received her Paralegal Certificate from Coastline Community College and has worked with some of the top law firms in the assisted reproduction community. Katie is also a commissioned Notary Public. With IFLG, Katie manages Surrogacy, Egg Donation, and Parental Establishment cases and provides support to other IFLG team members. Katie truly enjoys helping others build their families through assisted reproduction and is thankful she has had the rewarding experience of assisting IFLG clients. Katie often spends her free time with her Husband, four young children and her bulldog “Bella”.

Luis Sosa
LUIS SOSA
Paralegal

Luis R. Sosa joined IFLG as a paralegal in 2016, where he enjoys pursuing his passion for family and reproductive law. While working toward his bachelor’s degree at Florida International University which he received in 2013, Luis worked as a paralegal and legal assistant for family law litigation firms in Miami and Washington, D.C. As a paralegal and case manager for IFLG, Luis, who is bilingual in English and Spanish, manages surrogacy, egg donation and other reproductive law cases. Luis has worked for IFLG in both Los Angeles as well as San Francisco, and is currently based in Dallas, Texas. In addition to spending time with husband Randy and dog Marty, Luis enjoys being outdoors and appreciating the arts.

Alexander Espinoza
ALEXANDER ESPINOZA
Legal Assistant

Alexander joined IFLG as a legal assistant in 2019, where he manages surrogacy, egg donation and parental establishment cases. Alex is bilingual in English and Spanish and has been in the legal field for 23 years. Alex is excited to join the IFLG team and pursuing his will to help others in the reproductive law process. In his spare time he loves spending time with his family and friends, being outdoors, road trips, loves music and dancing.

Toni Hughes
TONI BOONE
Paralegal

After receiving her B.S. in Business Management, Toni joined IFLG to pursue her dream of working in the legal field. As a Paralegal with over 10 years of experience in the assisted reproduction technology field, Toni is our Managing Paralegal, responsible for training and managing our paralegal staff. From drafting legal documents to assisting our clients with post-birth matters, Toni embraces the challenge of learning something new in this field each day. Besides spending time with her son, Jordan, Toni enjoys exploring new things, cooking, spending time with family and friends, and serving as a Youth Advisor for “Next Generation.”

Miesha Cowart
MIESHA COWART
Financial Coordinator

Miesha Cowart joined IFLG as a financial specialist in 2014 following a successful career in development and business finance. Miesha previously worked for 10 years in the construction industry as a controller and for 13 years as Development Coordinator for the non-profit U.S. Fund for UNICEF. In her free time, Miesha works with “Next Generation” at her church. “They are my heartbeats!” she says of the youth in her community.

KIM DEVEREAUX
Paralegal

Kim has over 30 years of experience in the legal field and has worked exclusively in surrogacy and assisted reproduction law since 1999. Kim is a senior case manager responsible for managing parental establishment cases and interacting with IFLG’s Of Counsel attorneys across the country. With three children of her own, Kim understands the importance of family and finds working in this area of law a rewarding experience.

Rich Vaughn
RICHARD B. VAUGHN
Founder

Attorney Rich Vaughn combined his personal passion as a father of twin boys born via assisted reproductive technology (ART) with more than 20 years of experience in business and technology law to build International Fertility Law Group. Today IFLG is one of the most successful and best-known law firms in the world focused exclusively on fertility law, helping thousands of intended parents through empathetic listening, compassionate guidance, and unmatched legal expertise. As an advocate for reproductive freedom, Rich also contributes his knowledge and time to improving the understanding and practice of ART law, most recently as a founder of and speaker at the first Cambridge University International Surrogacy Symposium held in June 2019, as immediate past chair of the American Bar Association ART Committee, and as a popular presenter to law schools, faculty and advocacy organizations all over the world.

Elizabeth Tamayo
ELIZABETH TAMAYO
Paralegal

Elizabeth received her Bachelors of Science degree in Criminal Justice from California State University of Los Angeles. Shortly after graduating, she continued her education at the University of California, Los Angeles where she obtained her Paralegal certificate. Elizabeth is fluent in Spanish and has been in the legal field since 2009. She is excited to be a part of the IFLG Team helping families realize their dreams.

Sunny Chien
SUNNY CHIEN
Paralegal

Sunny joined IFLG as a paralegal in 2017, where she manages surrogacy, egg donation and parental establishment cases for many of IFLG’s international clients. She holds a Bachelor of Arts degree in Philosophy from California State University of Los Angeles, where she graduated cum laude. Sunny is bilingual in English and Mandarin and has extensive experience as a legal assistant and paralegal at Los Angeles-area law firms. She is excited to be part of the IFLG team. In her spare time, Sunny enjoys spending time with her family and their dog, going to the beach, cooking, and being outdoors.

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Molly O'Brien
MOLLY O'BRIEN
Partner

Fertility law attorney Molly O’Brien began working in the field of assisted reproduction technology (ART) in 2005, at an egg donation agency and a surrogacy agency where she became familiar with all aspects of in-vitro fertilization, egg donation and the financial aspects of surrogacy. Since becoming an attorney in 2011, Molly has drafted and negotiated surrogacy, egg donation, sperm donation embryo donation agreements for hundreds of her clients all over the world.

Phoebe Sadler
PHOEBE S. SADLER
Associate

Fertility law attorney Phoebe Sadler has a background in family law and has been practicing exclusively in the area of assisted reproduction technology (ART) law since 2018.

Rubina Aslanyan
RUBINA ASLANYAN
Paralegal

Rubina has an extensive background in the legal field as a paralegal in Family Law and has worked in surrogacy and assisted reproduction law since 2012. Her area of focus is in managing and assisting clients with surrogacy, egg donation, and parental establishment cases for many of IFLG’s domestic and international clients. During her spare time, Rubina enjoys spending time with her family and dog Bella, traveling and cooking.

Cara Stecker
CARA STECKER
Senior Paralegal

After receiving her paralegal certificate in 2005, Cara began working in assisted reproductive law. During the fifteen years Cara has worked in this field, she has gained a wide range of experience and knowledge that she uses to help better assist clients and those involved in the assisted reproductive journey. Cara’s primary roles involve managing parental establishment matters and coordination with IFLG’s Of Counsel attorney network, drafting contracts and parental establishment court documents and providing support to other team members. Cara finds great joy in being a small part of a team of caring people who help others achieve their dream of having a family. In her spare time, Cara enjoys spending time with her husband and three children, watching her children play the sports they love, and she enjoys, running, cycling and exploring the outdoors in the sun.

Stephanie Kimble
STEPHANIE KIMBLE
Paralegal

Stephanie received her BS in History and Political Thought from Concordia University Irvine in 2015 and her Paralegal Certificate from University of San Diego later that same year. She has been working as a Paralegal since 2016 in Family and Reproductive Law. She is excited to be part of International Fertility Law Group working on managing Surrogacy, Egg donation and Parental Establishment Cases.

Trish Pittman
TRISH PITTMAN
Assistant Financial Coordinator

With more than 20 years of experience in the field of accounting, Trish joined the IFLG team in 2019 as Assistant Financial Coordinator. Her client-facing focus at IFLG is to assist with all client trust accounting. Trish is the mother of two daughters and enjoys spending time teaching and learning new things from them. In her free time, she loves long walks in the park and reading suspense and mystery novels.

Elsa Jimenez
ELSA JIMENEZ
Legal Assistant

Elsa joined IFLG as a Legal Assistant in 2019, bringing more than 35 years of experience working in the legal profession (concentrating in tort and litigation matters). At IFLG she assists surrogates with their surrogacy and parental matters. The oldest of five siblings, born and raised in East Los Angeles to Mexican immigrant parents, Elsa loves “seeing the beauty of families forming” through assisted reproductive technology. She and her husband Carlos have four children and one grandson. Elsa enjoys jazz and ’80s music, being outdoors in nature, collecting teacups and tea pots, and spending time with her close-knit family.