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Health Costs Will Never Be Contained

When antidiscrimination law meets infertility treatment mandates.

Apr 15, 2013, Vol. 18, No. 29 • By WESLEY J. SMITH
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Should health insurers be legally required to offer infertility treatment for gay couples? Yes, according to a bill (AB 460) filed in the California legislature by assemblyman Tom Ammiano (D-San Francisco). In fact, refusing to do so should be a crime.

Current California law requires group health plans to offer coverage for infertility treatments with the exception of in vitro fertilization (IVF). If such coverage is purchased, benefits must be paid whenever “a demonstrated condition recognized by a licensed physician and surgeon as a cause for infertility” has been diagnosed—or upon “the inability to conceive a pregnancy or to carry a pregnancy to a live birth after a year of regular sexual relations without contraception.” Thus, under current law, diagnosis of a physical reason for the inability to conceive or sire a child is not required. It is enough that a couple tried to get pregnant for a year and failed. 

According to the fact sheet supporting AB 460, the trouble is that some insurance companies “are not complying with current law that prohibits discrimination” based on sexual orientation. Instead, they are denying infertility treatment benefits “based on [the policy holder’s] not having an opposite sex married partner in which to have one year of regular sexual relations without conception.” AB 460 would amend the law to add the following language:

 Coverage for the treatment of infertility shall be offered and provided without discrimination on the basis of age, ancestry, color, disability, domestic partner status, gender, gender expression, gender identity, genetic information, marital status, national origin, race, religion, sex, or sexual orientation.

But what does this blanket anti-discrimination language mean in the context of a gay or lesbian individual or couple? AB 460 maintains the existing two-pronged approach to determining infertility for purposes of requiring coverage, that is, either a “demonstrated condition” that causes infertility “or” the “inability to conceive a pregnancy .  .  . after a year or more of regular sexual relations.” 

This raises a cogent question: Could AB 460 be construed to require insurance companies to pay for infertility treatments for gay couples simply because their sexual unions cannot produce children? For example, might the law require that insurance pay for an insured lesbian’s artificial insemination, even if she is fecund, based solely on her choice not to have heterosexual intercourse?

It would seem so. There is no requirement that actual infertility be diagnosed. Nor is there a requirement that the gay “infertile” patient seeking coverage for treatment have tried and failed to conceive or sire a child through any heterosexual means, whether natural or artificial. Moreover, the bill would still define infertility as engaging in sexual intimacy without conceiving for one year, regardless of whether the relations were heterosexual or homosexual. Indeed, the bill has been filed precisely because the one-year definition purportedly has been applied in a discriminatory fashion by insurance companies to the detriment of gay individuals and couples who want to have children. 

And that raises another question. Would the law require a health insurance plan covering infertility treatment to pay for a surrogate pregnancy for a male couple? How about the costs of egg donation? The legislation is silent. But using egg donors and surrogates is common in the treatment of infertility. Since a birth mother is required for a man to have a baby, couldn’t the law be construed as requiring a gay man’s health insurance to pay for a surrogate pregnancy?

Indeed, that is the point, Carlos Alcalá, a spokesman for Ammiano, told me: “Anything that is covered by an insurance plan must be covered for everyone. .  .  . If a plan covers egg donation costs for a heterosexual couple unable to conceive without it, it would have to cover those costs for a gay male couple as well.” 

Under the proposal, then, every gay individual or couple—remember, no discrimination on the basis of marital or domestic partner status—could be construed as infertile, with group insurance required to pay for the individual or couple to have a child. 

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