by Attorney Edward R. Weinstein, Esq.
Infertility has traditionally been defined not conceiving after one year of trying for people who are less than 35 years old. However, when same-sex couples and single parents are embarking on fertility treatments, some experts question if the definition be expanded.
Treatments for infertility including in vitro fertilization (IVF) have been viewed by insurance providers as optional procedures which are generally not covered.
The result is that those same-sex couples and single patients face huge bills from trying to conceive.
Currently, eight states nationwide require that IVF be covered by insurance providers, according to national nonprofit Resolve, which advocates on behalf of employers and states to broaden coverage for infertility treatment. The laws of some states currently make it problematic to obtain fertility coverage for same-sex couples.
The NY Department of Financial Services, which supervises all insurance companies that do business in New York, recently released revised standards requiring insurers to give fertility treatment coverage for participants, regardless of their sexual orientation or marital status.
New York law mandates that insurers provide infertility and must also use the American Society for Reproductive Medicine’s definition to regulate when coverage begins. Infertility is defined by the Society as not having a successful pregnancy after a year or more of timed, appropriate, unprotected sex or insemination via donor.
This definition will not make obtaining treatment easy for same-sex partners, where coverage could hinge on how policies of insurance are deciphered. If the policy’s coverage hews to the medical definition of infertility, same-sex couples might be omitted because of biological makeup.
But, an argument could be made that a same-sex couple, could qualify.
Some query if the definition of infertility should instead be “disability,” which could allow singles and same-sex partners coverage.
Attorney Ed Weinstein observed, “Most of these statutes were enacted prior to the possibility of same-sex marriage. The state legislatures have not kept pace with what has happened in the country recently and needs to catch up.”