A class-action lawsuit filed on Thursday accuses New York City of discriminating against same-sex male couples who want to use in vitro fertilization to conceive children.
The city’s health plan provides coverage for up to three rounds of IVF for members who can prove they are infertile. But gay men — unlike straight couples, lesbians or single women — cannot meet the city’s infertility standards because they require members to first try and fail to get pregnant through other methods, according to the lawsuit. A male couple would typically use IVF to create embryos with an egg donor, and then have a surrogate bring the child to term.
The lawsuit comes even as some local lawmakers are seeking to make the city’s fertility coverage more equitable through legislation and as some large health providers are broadening coverage for IVF services in response to legal challenges.
Corey Briskin, a former assistant district attorney in Manhattan who is still on the city’s health plan, and his husband Nicholas Maggipinto, filed the suit against the city. The pair live in Brooklyn and previously filed a complaint about the city’s IVF policy with the federal Equal Employment Opportunity Commission in 2022. But that agency’s investigation into the matter was taking so long they decided to go to court, according to Peter Romer-Friedman, the couple’s attorney.
Documents related to EEOC complaints are generally not public. Brandalyn Bickner, a spokesperson for the agency, said it is prohibited from even confirming the existence of a complaint.
Liz Garcia, a spokesperson for Mayor Eric Adams, said on Thursday that the city’s policy accords with state requirements around IVF coverage. She added that the health plan only covers city employees and their dependents — regardless of gender identity or sexual orientation — but not “surrogates.”
Briskin and Maggipinto argue that they are not requesting any surrogacy benefits; rather, they say they are requesting the same IVF benefits other city employees receive. According to their lawsuit, the Adams administration made the same argument in response to the EEOC complaint.
The city’s employee health plan defines infertility for a couple as the inability to get pregnant after 12 months of regular, unprotected sex, or artificial insemination with donor sperm. For those over 35, the standard is six months. But same-sex male couples don’t have the option of trying and failing at these methods first, the lawsuit says.
It argues that the city should use a broader definition of infertility, from the nonprofit American Society for Reproductive Medicine, that includes anyone who needs medical intervention to achieve a successful pregnancy. This would inherently include all gay men, regardless of whether they’re single or in a couple, the lawsuit notes.
Saving up for IVF and surrogacy
Both Briskin and Maggipinto, who met at law school, now work in the private sector and have started the process of having a child on their own, they said in a joint interview this week. They said they have spent about $80,000 of their own money on IVF, which has involved working with an egg donor to create embryos.
They plan to eventually enlist the help of a surrogate to carry the child — a step that can cost upward of $100,000, according to the New York Surrogacy Center, a law firm specializing in surrogacy. Since the city health plan doesn’t cover surrogacy, the couple was always preparing to pay that expense themselves.
“We had to take money that was allocated toward paying a surrogate, which we knew was never going to be covered by insurance … and put it toward IVF,” Maggipinto said in the interview, ahead of the court filing. “It definitely set us back, I would say, at least a year and a half since we started the process, because we had to come up with more money.”
Romer-Friedman, their attorney, added that Briskin and Maggipinto are “some of the lucky ones who are able to cobble together the very significant resources that are required to go through this process without insurance covering the benefits.” He said he has spoken with other city employees who can’t afford to move forward with the process without any insurance coverage.
Some city councilmembers are pushing to force the city to change its policies, regardless of the outcomes of the lawsuit. Queens Councilmember Lynn Schulman, who chairs the Council’s health committee, introduced a bill in March to require the establishment of city employee benefits that cover some or all of the costs of assisted reproduction and adoption “without conditioning reimbursement on an infertility diagnosis.” The bill has 10 sponsors so far.
The class-action lawsuit against New York City is one of several recent efforts to create equal access to IVF and other reproductive assistance for LGBTQ+ people, as coverage for such services becomes more common.
Earlier this month, health insurer Aetna agreed to pay out $2 million to members as part of a settlement to a 2021 lawsuit alleging Aetna’s fertility coverage was discriminatory because it required same-sex couples to pay for artificial insemination out of pocket before becoming eligible for IVF. In the settlement, Aetna agreed to change its policies and adopt the American Society for Reproductive Medicine’s broader definition of infertility.
In March, the U.S. Department of Veterans Affairs also agreed to expand access to IVF coverage under its health plan, after facing two separate legal challenges last year. The VA previously only covered IVF for married couples who could produce their own egg and sperm. Now, it will additionally cover the procedure for unmarried veterans and those who use donated sperm or eggs.
In 2020, New York began requiring large group health plans to cover up to three cycles of IVF. A growing number of states have similar mandates, though eligibility rules vary, according to health policy nonprofit KFF. State insurance laws also don’t apply to so-called “self-funded” employer plans, which are regulated by federal law.