Should Same-Sex Couples Receive Fertility Benefits?

Photo
Credit Melinda Beck

“We want to start a family,” says Sarah Soller-Mihlek, a Brooklyn guitar instructor, speaking into a camera. “We’ve always dreamed of becoming parents,” adds her wife, Jill.

The couple made the video last year and posted it to Indiegogo, a crowdfunding website, in hopes of raising enough money to pay for fertility treatments. Jill Soller-Mihlek, now 33, was hoping to get pregnant via a sperm donor and intrauterine insemination, which can costs tens of thousands of dollars depending on how long it takes to conceive.

Although the couple’s insurance plan typically covers fertility treatment, their insurer, UnitedHealthcare, would not cover the cost. The reason? Jill Soller-Mihlek didn’t meet its definition of infertility because she did not have sex with men.

The couple’s insurance policy defines infertility as an “inability to achieve pregnancy after 12 months of unprotected heterosexual intercourse.” But women who use sperm donors must pay for costly, physician-supervised therapeutic donor insemination for 12 months before they meet the definition of infertility. (Women 35 and older need to go through six failed attempts before meeting the clinical definition of infertility.)

After the Soller-Mihleks paid $13,507 out of pocket for nine unsuccessful cycles of insemination, they decided to chronicle their travails on Indiegogo and Change.org.

While the UnitedHealthcare policy tacitly acknowledges single women and same-sex couples, many policies do not. Some even exclude unwed women. Notably, major insurers like UnitedHealthcare often do cover insemination treatments when the issue is male infertility.

The Soller-Mihleks believe their plan’s criteria for granting medical coverage of fertility treatment reveals a subtle form of discrimination against lesbians. (Needless to say, gay men face even greater obstacles in attempting to gain coverage, given that coverage wouldn’t extend to the woman who’d be carrying for them.)

The Soller-Mihleks say their concern is that a lesbian, by definition, is incapable of getting pregnant through heterosexual intercourse and requires medical intervention to conceive. They say the subtext of the UnitedHealthcare policy is that a lesbian could get pregnant by having sex with a man, she just chooses not to.

Shannon Price Minter, head of the legal division at the National Center for Lesbian Rights in San Francisco, said: “To me, the central injustice is that when a person has a known condition that precludes them from becoming pregnant, such as a woman who has had her ovaries removed, there is no requirement to go through a period of unprotected intercourse before being recognized as requiring fertility treatments. The same should be true for same-sex couples.”

Tyler Mason, a spokesman for UnitedHealthcare, said the company’s policy is based on the clinical disease of infertility, as defined by the American Society of Reproductive Medicine.

“Our coverage criteria are based on clinical trial data, published literature and recommendations from a wide variety of medical specialty societies and state laws,” Mr. Mason wrote in a statement. “We constantly review and update coverage criteria.”

Aetna also uses the clinical definition of infertility to support its reimbursement policies for fertility treatments.

“It’s not a pregnancy benefit,” said Cynthia B. Michener, an Aetna spokeswoman. “It’s based on the clinical disease of infertility, supported by medical evidence and medical society guidelines, including those set out by the A.S.R.M., and it’s the same for everyone.”

But some experts say the policies are discriminatory. Dr. Paula Amato, an associate professor of obstetrics and gynecology at Oregon Health & Science University, sits on the ethics committee of the reproductive medicine society, says it may not be fair to use the clinical definition of infertility in the case of same-sex couples.

“In my opinion, it’s unfair because they are treating same-sex couples differently from heterosexual couples,” Dr. Amato said. “Same-sex couples have to pay for the 12 or six months of trying on their own. The insurance companies are making a distinction between what they would call ‘medical infertility’ and ‘a medical problem for lack of a male partner,’ and I would argue that ‘lack of a male partner’ should be enough to justify an indication for medical treatment.”

To be sure, many heterosexual couples are also forced to endure the heavy financial burden of fertility treatment because their insurance companies won’t pay for it. Only 15 states, including New York, California, Illinois and Texas, mandate some form of fertility coverage, and many insurance companies don’t cover any fertility treatments.

“In the U.S., about 85 percent of all infertility care is paid out of pocket,” said Judith F. Daar, a professor of law at Whittier Law School in Costa Mesa, Calif., and chairwoman of the reproductive medicine society’s ethics committee. “And only about 50 percent of all people who experience infertility actually visit professionals to follow up, because of the financial stranglehold.”

Jennifer C. Pizer, the law and policy project director for Lambda Legal, a gay rights advocacy organization, said that it was not clear whether gay couples could win a legal challenge against insurance companies, but that a double standard of reimbursement for straight and same-sex couples smacked of discrimination.

“I do think it’s sex or sexual orientation discrimination to treat a man with a female partner and a very low or absent sperm count differently than a lesbian with a female partner and nonexistent sperm count,” Ms. Pizer said.

After completing 12 unsuccessful months of intrauterine insemination, or IUI, Jill Soller-Mihlek asked UnitedHealthcare to begin reimbursing the costs of her treatment. As it happened, a clerical error resulted in reimbursement for one treatment, but the larger request for coverage was denied on different grounds. Because Ms. Soller-Mihlek had tried 12 times to conceive using the IUI method, the insurer declined to cover more IUIs, saying she was now a medical candidate for in vitro fertilization, or IVF, a fertility treatment the policy didn’t cover under any circumstances.

Ms. Soller-Mihlek said the policy created a Catch-22 for lesbian couples and single women.

“Twelve months of sex with one’s husband will make you eligible for coverage, but 12 months of IUIs makes you a lost cause,” she said.

After spending $22,000 on treatments, she sought additional medical advice on the possible reasons for her infertility. She received a diagnosis of endometriosis, a painful disorder in which the tissue that normally lines the inside of the uterus grows outside it, and was thus eligible for insurance coverage.

With the insurance company finally covering the costs, Ms. Soller-Mihlek underwent a 13th round of IUI treatment. This time it was a success, and she is now 18 weeks pregnant.

“As happy as we are with our growing bump,” she said, “it won’t be a complete success story until we know that no more families have to go through what we did to get here.”

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