Same-Sex Couples Sue Over Fertility Treatment

By Brenda Flanagan

“We just really want a child and start our family,” said Sarah Mills.

Sadly, like many couples Mills and her wife Gloria Torres discovered they needed fertility treatments to help Sarah conceive after clinical tests showed she suffers from ovarian cysts. Her health insurance covers fertility issues, but Horizon Blue Cross Blue Shield refused to pay. Why?

“Because I did not have sexual intercourse — as mandated by the state — with a man, for two years,” Mills said.  Her reaction: “I was appalled.”

New Jersey’s one of 15 states requiring insurance companies to cover fertility treatments, but the state mandate requires women to prove their infertility through “two years of unprotected sex with a man” with no regard for their sexual orientation.

“There’s no way I would ever want to be with a man. I’ve known I was gay for a long time. I love Gloria. We’re not looking to go outside our relationship for a baby,” said Mills.

“It should be just fair, and it’s not, because they’re saying this is not the natural way of conception. So hey, you guys can’t be covered,” Torres said.

Horizon Blue Cross Blue Shield notes, it follows the state mandate, and “Horizon covers infertility services equally regardless of sexual orientation. We interpret the 2001 New Jersey law defining infertility in a gender and orientation neutral manner and our coverage standard complies with federal non-discrimination requirements.”

“The insurance company gets to blame the state, and say, ‘Hey, we’re following all the policies, we’re following all the laws,’” said Torres.

It’s a practice fertility experts say they see all too often.

“A lot of times, they’re still going to say we want you to have tried on your own before we will kick in with the fertility benefits. And typically they ultimately will allow them access to the benefits, but only after a couple has spent a good amount of money out of pocket trying to conceive and is unsuccessful through other treatments,” Dr. Adam Fechner from University Reproductive Associates said.

“The majority of insurances will deny coverage for same-sex relationship couples and the reasons they give is because they have not been exposed to sperm for the length of time in which their policy describes. I feel that the insurance companies need to readdress the definition of how they define infertility because our society is changing and they need to change with it,” said Medical Director of the Reproductive Science Center of New Jersey Dr. William Zeigler.

For now Mills and Torres will spend their own money for expensive fertility treatments. They also joined three other lesbian plaintiffs in a lawsuit filed against New Jersey’s Department of Banking and Insurance by attorney Grace Crutcher, who calls the state mandate totally unconstitutional.

“At the moment, women in same-sex relationships who are unable to conceive have absolutely no way pursuant to the mandate to qualify as infertile,” Crutcher said.

The Department of Banking and Insurance had no comment.

There is a bill that would fix the regulatory language, but its been languishing in committee. Plaintiffs’ attorneys say this lawsuit will probably yield a quicker legal remedy.