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.