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Who can access IVF benefits? A gay couple’s complaint seeks an answer.

The complaint alleges that the City of New York’s denial of IVF benefits constitutes discrimination

(iStock/Washington Post illustration)
8 min

Not long after Nicholas Maggipinto and Corey Briskin began dating in 2011, they made sure to get clear on one thing: How did the other feel about having children?

Having children was a dream Maggipinto, a 36-year-old Brooklyn-based attorney, had held for a long time.

“Growing a family is the sort of the thing that I think gives people a sense of completeness, and partially a sense of purpose in life,” Maggipinto said. “I frankly don’t think I would feel complete without being able to have a child.”

Maggipinto and Briskin, a 33-year-old former assistant district attorney, were happy to discover that they each wanted and expected to have children of their own. But more than 10 years later, the couple, now married, have not yet brought a child into their family. The reason, they say, are discriminatory policies that “categorically” shut them and other gay male couples from accessing a key fertility treatment: in vitro fertilization.

On Tuesday morning, Briskin and Maggipinto filed a class-action discrimination complaint against the City of New York, alleging the city government violated their civil rights by refusing to pay for fertility services that were covered for women and cisgender couples. In the complaint, Briskin said he believed his insurance benefits working for the city would cover some of the costs.

The filing with the U.S. Equal Employment Opportunity Commission alleges that the City of New York’s denial of IVF benefits to the couple and other gay male employees “constitutes unlawful sex and sexual orientation discrimination.”

The complaint comes at a time when LGTBQ rights are at the fore of U.S. politics, with state legislatures across the country introducing an unprecedented wave of legislation that rolls back access to gender-affirming health care, bars transgender children’s participation in recreational activities and prohibits the mention of sexual orientation and gender identity in public school settings.

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Changing the policy would impact hundreds of thousands of city government employees, said the couple’s attorney Peter Romer-Friedman. (According to its jobs site, the City of New York employs approximately 325,000 workers.) But it could also set a precedent for gay and transgender couples encountering similar obstacles in their workplaces.

“We hope New York City will see the light after we file this charge and agree to work with us to reform its policy,” Romer-Friedman said. “Corey and Nicholas are prepared to go the distance in this case.”

Although Briskin worked for the city government under former mayor Bill de Blasio (D), the current office of Mayor Eric Adams (D) will deal with the outcome. A spokesperson for City Hall said through an emailed statement on Tuesday that it was reviewing the details of the complaint.

“The Adams administration proudly supports the rights of LGBTQ+ New Yorkers to access the health care they need,” the spokesperson said. “New York City has been a leader in offering IVF treatments for any city employee or dependent covered by the city’s health plan who has shown proof of infertility, and our policies treat all people under the program equally, regardless of gender identity or sexual orientation.”

The complaint will be reviewed by the EEOC, which will work with the Department of Justice to determine whether there’s cause to believe New York City is violating Title VII of the Civil Rights Act, Romer-Friedman said. A class-action lawsuit could follow.

Briskin and Maggipinto knew early on that conceiving a child would be a costly and difficult endeavor, one that would involve an egg donor and a surrogate to carry the child. In November 2015, a doctor gave them a rundown of the process in what served as a “preview” of the obstacles to come, said Maggipinto: “This system is just not set up to support gay men in this process.”

But in 2017, when Briskin began working as an attorney in the New York County District Attorney’s Office, he found out that his health benefits included reimbursement of up to 95 percent for any medical coverage, including IVF.

It was a “huge” financial boost, said Maggipinto, who added that the couple had been told by a fertility doctor that trying to conceive a child could total between $150,000 to $200,000 — well beyond what the couple could afford.

But when they met with a doctor and provided their insurance information, they were denied coverage for the fertility procedure, Maggipinto said. They didn’t meet the criteria for the benefit, which required workers seeking IVF coverage to first prove they are infertile.

The city’s insurance benefits policy defines infertility as the inability to conceive after “12 months of unprotected intercourse,” or intrauterine insemination, in which sperm is inserted directly inside a uterus.

Because they are a gay male couple who would need to use a surrogate, Briskin and Maggipinto could not meet the criteria laid out in the policy’s language, the complaint alleges.

They appealed to City Hall to revisit the policy, arguing that it violated New York State and federal anti-discrimination laws. The City, then run by de Blasio, refused, the filing alleges.

LGBTQ couples and individuals looking to start a family have long experienced obstacles to accessing fertility treatments, said Cathy Sakimura, director of family law at the National Center for Lesbian Rights.

These barriers can vary depending on one’s gender identity: Gay male couples have been turned away from getting IVF coverage, while lesbian couples and transgender people have been denied IVF and other forms of fertility coverage that are otherwise available to peers who are single, cisgender women or in male/female couples.

This has to do with the way insurance policies are written, Sakimura said. Many require a medical diagnosis of infertility, defined in heterosexual terms, or proof that the individual/couple is unable to conceive children through intercourse.

“LGBTQ people are not being thought of, and you could say were actively excluded, in the creation of fertility insurance generally and the statutes that address fertility insurance,” she said.

When LGBTQ families are denied coverage, those who cannot afford to pay for the services outright often turn to other routes, like adoption or at-home insemination with a known donor. But the latter comes with legal risks around establishing who the child’s parent is, Sakimura said, and the adoption process remains fraught for LGBTQ individuals.

Maggipinto said that he has friends who encountered similar difficulties when they tried to start their families. While some of them turned to adoption, he and Briskin are “not ready” to give up their desire to be biological dads, Maggipinto added.

Over the last 10 years, more Americans have turned to IVF to help them start or build their families. But fertility benefits are not covered by the Affordable Care Act, meaning that most people need to access these treatments through their employers — or pay tens of thousands of dollars out-of-pocket.

IVF is one of the most expensive fertility treatments but is also considered the “gold standard,” making it highly sought after, the New York Times reported in 2019. Responding to the increasing popularity of the benefit, more employers have started to cover the cost of these procedures.

But insurance infrastructure has made it difficult for those using a surrogate to access this care. As the Gothamist reports, because there’s no medical billing code for treatments involving a third party, these procedures are not tax-exempt; employers would need to categorize these specific procedures as a gift, which the worker would have to pay taxes on.

That doesn’t stop some companies from figuring out how to provide the service anyway.

Briskin and Maggipinto argue that the Constitution is on their side.

The complaint cites a recent Supreme Court precedent: The 2020 Bostock v. Clayton County case, which found that civil rights law protects workers against sex discrimination applies to both gender identity and sexual orientation. Because gay male couples cannot meet the criteria set by the city government’s health policy, “we see this as an employment discrimination issue,” Maggipinto said.

While the couple is optimistic about their chances to bring change to the city’s health-care policies, Maggipinto said he remains heartbroken and angry at the time they have lost: “We didn’t come to this looking for a fight,” he said. “We came into this looking for a baby.”

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