Lesbian Couples Sue Because Only Women with Male Partners Get Fertility Treatments Covered

Four lesbians are suing New Jersey over a law that discriminates against same-sex couples hoping to conceive a child through fertility treatments. Erin and Marianne Krupa, Sol Mejias, and Sarah Mills filed suit against New Jersey’s Department of Banking and Insurance on August 1. The lawsuit claims the women were denied insurance coverage for their fertility because of the wording of a state law that requires women to prove their infertility through two years of unprotected sex with a cis man in order for the treatments to be covered. The women argue the law discriminates against infertile gay women trying to conceive and forces them to pay for costly procedures, while straight infertile women do not.

The suit reads:

“Every day that New Jersey law continues to exclude women in same-sex relationships from the protections of the infertility mandate, these women must either wait for the law to change as their childbearing years continue to slip away or, if they have any available resources, bankrupting themselves and their families in order to pay for fertility care that is automatically covered for straight women.”

The Krupas have been trying have a baby since 2013 but doctors found benign cysts on Erin’s uterus and diagnosed her with endometriosis, which made her infertile. Under state law, most major insurance providers are required to cover costly fertility treatments for patients medically unable to have children. However, because Krupa wasn’t able to demonstrate she has had unprotected sex with a man for two years, Horizon Blue Cross Blue Shield denied her coverage. Krupa, along with Mejias and Mills — who were also denied coverage by Horizon Blue Cross Blue Shield — decided to pay out of pocket for the costly procedures.

The Krupas spent more than $25,000 worth of failed fertility treatments before the insurance company agreed to pay for some treatments. According to the New York Times, the Krupas were allowed four cycles of in vitro fertilization. The first three were unsuccessful and then with the fourth cycle, they decided to use Erin’s embryo and have Marianne carry them. Marianne was able to use the insurance money allotted to her wife for the last in vitro cycle but she miscarried twice. The NYT reports:

“This has been emotionally and physically taxing,” Erin Krupa said, her voice wavering. “I’m also stubborn and really want this to work.”

The Krupas worry they are running out of time to conceive. Both women are now undergoing in vitro fertilization, even though the procedures are no longer covered. They have paid about $50,000 out of pocket for treatments since they first tried to start a family.

Mejias and Mills and their respective partners have been continually denied of coverage. Mills used credit cards to pay for unsuccessful attempts of artificial insemination and anticipates using a loan for future treatments.

“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,” Grace Cretcher, a lawyer for the plaintiffs, told the New York Times.

The insurance company claims it doesn’t discriminate and covers “infertility services equally, regardless of sexual orientation” and interprets the law “in a gender and orientation neutral manner” that “complies with federal non-discrimination requirements.” The lawsuit doesn’t take issue with the insurance company but with the state law’s wording, which is “particularly egregious and one of the most specific and exclusionary,” according to the plaintiffs’ lawyer.

New Jersey is one of 15 states that requires insurance companies to cover fertility treatments, the New York Time reports. California and Maryland are the only states that have updated their laws to be inclusive of gay couples. New Jersey has two proposed bills that would change the definition of infertility to be determined by a physician but they have not been moved by committees.

The women are hoping to recover the money they already spent on treatments and help to change the law for future lesbian couples trying to have a baby.

Yvonne S. Marquez is a lesbian journalist and Autostraddle senior editor living in Dallas, TX. She writes about social justice, politics, activism and other things dear to her heart like Selena and tacos. She graduated from the University of Texas at Austin with a degree in journalism and has since written and edited lots of gay stuff for the internet. Yvonne calls the borderlands home, strongly identifies with her Scorpio moon sign, and really hopes to crush the patriarchy soon. Follow her on Instagram or Twitter.

Yvonne has written 204 articles for us.

10 Comments

  1. Your insurance would have access to birth control info if you went through them to get it. So my guess is two years with no birth control? I have no idea how they can prove the rest of it, but they can certainly look at that to block it.

  2. Its actually kind of fair if you think about it. Paying for fertility treatments until its not successful is fair. If you think about the other flip side their is Gay male couples who have to pay for the fertility treatments themselves. Then of course you have trans partners who can’t have kids so fertility treatments are required as well. Both of these groups require surrogates which are not cheap either.

  3. Ooo, this wades into murky territory.

    I think it would be reasonable for the insurance provider to expect cis lesbian couples (or any couple with at least one viable womb and a non sperm-producing partner) to provide evidence of x failed insemination attempts before providing the fertility treatment coverage.

    • In this case, though, the patient had already consulted a doctor who’d already told her it would be difficult/impossible for her to conceive without fertility treatments. She knows that insemination is most likely a waste of everyone’s time, and if the insurance company covers that procedure, they’d save money by letting her go ahead with the treatments right away.

  4. See this is interesting to me because my wife and I just went through infertility treatment in NY and I had the same concerns with insurance that read the same way, how the hell will we prove that we are trying to have a child (I was all ready to say that I found a guy who I was sexing with). But I had no issue whatsoever with my insurance and we are now happily pregnant. I wish these ladies the best.

  5. The insurance company at the trial may point out a very powerful fact. There are two wombs in a lesbian relationship. If one can not have a baby then why didn’t the other woman take up the slack and have the baby for the both of them? It almost seems kind of mean and insensitive for one woman who can’t have a baby to be shamed by her partner for not having a kid when the other may be able to have the child.

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