Gay couple sues New York City over IVF discrimination in yearslong battle against city's health care laws

A gay couple has sued the city of New York as they claim its laws regarding infertility violate the rights of same-sex couples.

Corey Briskin and Nicholas Maggipinto say their insurance unfairly denied them coverage for in vitro fertilization (IVF) even though their plan provides for three rounds of IVF coverage for women.

In a first-of-its-kind class action lawsuit, the couple argues the city is violating their rights under Title VII of the Civil Rights Act of 1964, which says employers cannot discriminate against a person based on their sex.

Men are not provided IVF coverage in the city because it does not see them as infertile, as reported by the Advocate. 

The couple has for years argued that NYC's IVF benefits make accommodations for  heterosexual and lesbian couples, as well as single women, but not for gay men.

Briskin and Maggipinto married in 2016, and Briskin began working as an assistant district attorney in Manhattan the next year.

While he left that job in 2022 in order to earn more money and pay for surrogacy, both men are still covered under a federal law called COBRA for three additional years. 

'There have been ample opportunities for the city to have changed the policy over the past two years and they haven’t, without explanation,' Briskin told The Guardian.

The suit claims: 'By defining "infertility" in this exclusionary manner, single female employees, female employees with male partners, female employees with female partners, and male employees with female partners are always potentially eligible for some IVF benefits under the City’s healthcare plan, but gay male employees—whether individually or with male partners—are never eligible for any IVF benefits.' 

The couple plans on first using IVF to combine and egg with a sperm in a lab, and then would work with a surrogacy agency to find someone to carry the baby to term, they told NBC News.

A spokesperson for the city told the Advocate: 'New York City has been a leader in offering IVF treatments for any city employee or dependent covered by the city’s health plan who has shown proof of infertility, and our policies treat all people covered under the program equally, regardless of gender identity or sexual orientation.'

Fertility treatment coverage has grown more common in recent years, especially among employers eager to recruit and retain workers.

The benefits consultant Mercer says 45 percent of employers with 500 or more workers offered IVF coverage last year. 

That’s up from 36 percent  in 2021. Many place limits on the number of treatment cycles or set a lifetime maximum for the benefit.

Many insurers also cover artificial insemination as a standard benefit for all policyholders, according to Sean Tipton of the American Society for Reproductive Medicine.

Earlier this month,  Aetna agreed to settle a lawsuit that accused the health insurer of discriminating against LGBTQ+ customers in need of fertility treatment.

The insurer will make coverage of artificial insemination standard for all customers nationally and work to ensure that patients have equal access to more expensive in-vitro fertilization procedures, according to the National Women’s Law Center, which represented plaintiffs in the case.

Aetna will also set aside a $2 million fund to reimburse people who had coverage from some of its commercial insurance plans in New York and were denied reimbursement for artificial insemination, a procedure in which sperm is placed directly in a woman’s uterus. 

A federal judge still must approve the deal.