TIME FOR A DO-OVER

An outdated law is preventing same-sex couples in New Jersey from getting fertility treatment

In the state of New Jersey, women can avoid out-of-pocket costs for infertility treatments—but only if they’re trying to conceive with a man.

The New Jersey Infertility Mandate requires all insurance providers that cover at least 50 people and provide pregnancy-related benefits to pay for infertility diagnosis and treatment. The state’s definition of infertility is a condition in which either one of the partners in a relationship is medically sterile, or if a woman can’t conceive after two years of unprotected sexual intercourse (one year for those over 35). The problem though is that in their definition of infertility, “sexual intercourse” means, very specifically, sexual union between a male and a female.

Which is why four New Jersey residents—Erin and Marianne Krupa, Sol Mejias, and Sarah Mills—are suing Richard J. Badolato, the commissioner of the state Department of Banking and Insurance, for what they argue is discriminatory language in the mandate that pointedly excludes lesbian couples trying to conceive. The four women, who are all in same-sex relationships, claim that their insurance providers denied them coverage for fertility treatments because of the language, according to a lawsuit filed on Aug. 1.

“Despite having a medical diagnosis of infertility, because, as a lesbian in a committed relationship, Erin could not show that she had unprotected sexual intercourse with a man for the requisite period, the Krupas were not protected by the mandate,” the civil suit states. During their attempts, the suit says, the Krupas spent over $25,000, and Erin went through physical and emotional turmoil after an ectopic pregnancy and a miscarriage.

According to the lawsuit, Mejias was denied coverage because her failed at-home insemination attempts with sperm from a male friend were not proof enough that she had been trying to conceive. In a letter, the insurance company said the denial was based on the fact that her efforts were not indicative of “abnormal function of the reproductive system” because she had no male partner who could provide a “semen analysis … that would support male infertility.”

In all of the cases, the women were evaluated by doctors and medical professionals and offered coverage for specific procedures but not complete infertility treatment. They ended up incurring significant personal costs that their insurance company, Horizon Blue Cross Blue Shield (HBCBS), did not reimburse.

“Horizon covers infertility services equally regardless of sexual orientation,” an HBCBS spokesperson told Quartz. “We also recognize that fertility cases are unique to each member and this complexity can make navigating the system stressful.” HBCBS, the spokesperson said, follows the same evaluation procedure for heterosexual couples.

Serena Chen, director of reproductive medicine at Saint Barnabas Medical Center, says that in many cases insurance companies will simply use the New Jersey mandate’s wording as an excuse to deny insurance claims. As a result, many gay couples end up having to figure out their own way to get the fertility treatments they need. “Some people who could afford it would just pay out of pocket,” Chen told Quartz. Most end up seeking out new employment, with companies that offered better insurance coverage. People have been fighting things one person at a time,” Chen says.

This is the first lawsuit to challenge the NJ mandate, but it’s probably a long time coming, as the 2001 piece of legislation has not kept pace with the 21st century. “The mandate was a good thing when it came out, it really did help a lot of people with the issue, but it really is biased because it is based upon an old definition of infertility,” says Chen.

In February 2016, New Jersey State Senate majority leader Loretta Weinberg put forth a bill proposing an amendment that would expand the availability of insurance coverage to “lesbians, women without partners, or women with partners who have protected intercourse.” In order to do so, “a determination of infertility by a physician licensed to practice medicine and surgery in this State” would suffice for purposes of insurance coverage determination.

The lawsuit follows Weinberg’s thinking, proposing a variety of medically-sound ways to evaluate a woman’s fertility without the need for heterosexual intercourse:

  • interviewing a woman about her health history
  • physical exams like a pelvic exam, a Pap test, and blood tests
  • hormone tests to check ovulation and other reproductive processes
  • hysterosalpingography, which examines the condition of the uterus and fallopian tubes
  • ovarian reserve testing, which tests the quality and quantity of the eggs available
  • imaging tests and procedures, such as pelvic ultrasound, hysterosonography, hysteroscopy, and laparoscopy, which can “identify endometriosis, scarring, blockages or irregularities of the fallopian tubes, and problems with the ovaries and uterus”
  • genetic testing for hereditary defects causing infertility

More broadly speaking, the fight to have children is a natural next step for the LGBT community after recent wins for the rights to marry and raise children. “In the last five years, there’s been a barrage of litigation involving same sex couples where courts have been open to arguments,” says reproductive lawyer Melissa Brisman. “They have ammunition now to fight this.”

Suing the state department, instead of individual insurance companies, is wise, says Brisman: they’re fighting against the antiquated mandate, not a specific company. If the court rules that the mandate needs to be changed, all insurance companies will be forced to comply.

“It was only a matter of time until someone sued over this,” says Brisman. “Insurance companies are going to need to change with overall values in the US that have become more accepting of all types of families.”

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