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Do Lesbians Have Access to Fertility Treatments?

By Christopher Coble, Esq. on August 17, 2016 | Last updated on March 21, 2019

Everyone who wants to start a family should have equal access to medical care and technology needed to get pregnant. But some outdated -- or bigoted -- state laws deny lesbians who want to give birth equal access to fertility treatments. Take New Jersey's law, for example, which denies health insurance coverage for fertility treatments unless a woman can show she had unprotected heterosexual sex and still couldn't get pregnant.

That poses an obvious problem for lesbians, especially those in committed relationships. Which is why two New Jersey lesbian couples are suing the New Jersey Department of Banking and Insurance, claiming the mandate discriminates based on sexual orientation.

A Body Too Far

One of the couples in the New Jersey lawsuit, Erin and Marianne Krupa, has been trying to get pregnant for three years. In 2013, a fertility doctor discovered benign cysts on Erin's uterus and diagnosed her with Stage 3 endometriosis -- where the tissue that normally lines the inside of the uterus grows on the outside instead -- meaning she was infertile.

Normally, the Krupas' insurance company (Horizon Blue Cross Blue Shield) would pay for fertility treatments, as state law requires. But that law also requires that women under 35 demonstrate their infertility through "two years of unprotected sexual intercourse." The Krupas, along with Sarah Mills and her partner Gloria Torres, claim the statute forces infertile gay woman to pay for fertility treatments, discriminating against them based solely on their sexual orientation.

State Fertility Statutes

According to the New York Times, fifteen states make insurance coverage for fertility treatments mandatory, and California and Maryland have updated their statutory language to extend that coverage no matter a person's sexual orientation. New Jersey, too, has tried to fix its fertility access mandate -- two bills have been proposed in the state legislature that would expand the definition of infertility to include a "determination of infertility by a physician." But neither bill has come up for a vote.

If you've been denied insurance coverage for fertility treatment and believe the denial was improper, you may want to consult with an experienced family law attorney about your options.

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