New Jersey Infertility Mandate Overlooks Same-Sex Couples

Photographed by Natalia Mantini.
Trying to get pregnant isn't always as easy as you think it will be. Infertility struggles are all too real and they can be all too heartbreaking. And if you're part of a same-sex couple struggling to get pregnant in the state of New Jersey, it can be even more difficult and more expensive — than you ever imagined.

The New Jersey Infertility Mandate, passed back in 2001, requires all insurance providers that provide pregnancy-related benefits to pay for infertility diagnosis and treatment — unless the individual struggling with infertility is part of a same-sex couple. How is that possible exactly? The answer lies in the state's definition of "sexual intercourse."

The state of New Jersey defines infertility as a condition in which either one of two partners in a relationship is medically sterile or in which a woman can't conceive after two years of engaging in unprotected sexual intercourse. (For ladies over 35, an infertility diagnosis can be given after one year. Hooray?) But that sexual intercourse the state is referencing? It refers exclusively to sex between a man and a woman.

That's why, as Quartz reports, New Jersey residents Erin and Marianne Krupa, Sol Mejias, and Sarah Mills have filed a lawsuit against Richard J. Badolato, the commissioner of the state Department of Banking and Insurance, alleging that the mandate discriminates against same-sex couples. The four women, who are all in monogamous same-sex relationships, claim that discriminatory language in the mandate specifically excludes lesbian couples.

According to the lawsuit, “despite having a medical diagnosis of infertility, because, as a lesbian in a committed relationship, Erin could not show that she had unprotected sexual intercourse with a man for the requisite period, the Krupas were not protected by the mandate" and instead spent over $25,000 on fertility treatments. Coverage was allegedly denied to Mejias, because though her at-home insemination attempts failed repeatedly, they were not proof enough that she had been trying to conceive. Each of the women filing suit were evaluated by doctors and various other medical professionals for their fertility struggles. While they were ultimately offered coverage for specific procedures, they were denied complete infertility treatment.

According to Quartz, a spokesman for the women's mutual insurance company, Horizon Blue Cross Blue Shield (HBCBS), insisted that the company "covers infertility services equally regardless of sexual orientation" and acknowledged that "fertility cases are unique to each member and this complexity can make navigating the system stressful.”

But as Serena Chen, director of reproductive medicine at Saint Barnabas Medical Center, told the publication, the New Jersey Infertility Mandate in question "was a good thing when it came out, it really did help a lot of people with the issue, but it really is biased because it is based upon an old definition of infertility.”

A definition of infertility that seems especially ripe for change considering the incredible strides the LGBT community has fought for and won in the past year alone. (Hello, marriage equality!) Because if Nickelodeon can embrace same-sex parents, New Jersey really should be able to, too.

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