New definition of infertility brings hope to same-sex couples

In vitro fertilization (IVF) and other assisted reproduction services have historically been more challenging for LGBTQ+ couples across the country. That is partly due to health insurance companies denying coverage based on the U.S. government’s definition of infertility.

The Centers for Disease Control and Prevention (CDC) defines the condition as being unable to conceive after one year of unprotected sex. That excludes many same-sex partners as it is impossible for them to get pregnant at any time. Fortunately, the Biden administration wants to change the CDC’s definition.

HHS looks to update Section 1557

The Department of Health and Human Services announced last year that it intends to change Section 1557 of the Affordable Care Act (ACA) regarding fertility treatments. Section 1557 prohibits discrimination in covered health programs or activities based on sex, age, color, race, national origin and disability.

The revision would interpret “sex” to include gender identity, which was the intent when President Obama signed the ACA into law. However, the Trump administration changed the rule to exclude LGBTQ+ individuals. Many lawsuits over IVF coverage have already been filed. Aetna faces a class-action lawsuit, and another discrimination complaint targets the New York City Health Plan for denying IVF benefits to same-sex male couples.

To whom would Section 1557 apply?

According to the Kaiser Family Foundation, the rule changes would include nearly 11% of Americans with health insurance coverage. The group says the revisions would apply to 18.7 million people in marketplace plans and almost 13 million on smaller group plans. However, Kaiser says the changes and state mandates would likely not apply to self-funded employer insurance plans, which cover nearly two-thirds of workers across the country.

Seventeen states require some health insurance plans to cover fertility treatments – Minnesota is not one of them. Since no federal law has been approved, coverage is determined mainly through a patchwork of federal anti-discrimination laws, state insurance statutes, and court rulings interpreting them. The law lags far behind for those requiring assisted reproduction services, especially same-sex couples, who are trying to grow their families.

Given the complex system of insurance plans and varying applicability, it is helpful to consult an attorney who is knowledgeable about these issues if you intend to assert your own infertility and grow your family through fertility procedures that may or may not be covered.