Aetna accused of denying coverage of fertility treatments for LGBTQ+ policyholders

The National Women’s Law Center filed a first-of-its-kind lawsuit against an insurance firm, alleging Aetna discriminates against LGBTQ policyholders in its coverage of fertility treatments.

The class action, filed on Monday in federal court in the Southern District of New York, claims that Aetna’s policy provides coverage to individuals with “infertility,” defined as those who, after 12 months, haven’t gotten pregnant after having unprotected sex or after receiving “therapeutic donor insemination.” LGBTQ individuals, however, cannot conceive through sexual intercourse, relying instead on fertility treatments such as intrauterine insemination (IUI) or in vitro fertilization (IVF).

Without coverage, 12 cycles of fertility treatments can end up costing tens of thousands of dollars out of pocket, the complaint says. The plaintiff in the case, Emma Goidel, a 31-year-old who is insured by Aetna through her spouse’s student health plan at Columbia University, spent nearly $45,000 on seven separate treatments to obtain one successful pregnancy.

“Our understanding is there have not been any other lawsuits like this against insurance companies challenging their fertility provision. We think this is the first lawsuit of its kind,” said Noel Leòn, of New York’s Emery Celli Brinckerhoff Abady Ward & Maazel, which partnered with the National Women’s Law Center to bring the case. “It’s really a tax on queer couples and policyholders.”

The complaint was filed on behalf of two classes of New Yorkers: Those denied coverage under Aetna’s student health plan, and those who will be denied, “due to their sexual orientation or gender identity.”

The complaint says student health plans with “identical language” to Aetna’s exist at Barnard College of Columbia University, Brooklyn Law School, Cornell University, the Fashion Institute of Technology, Hofstra University, the Icahn School of Medicine, Manhattanville College, New York Film Academy, New York Institute of Technology, Pratt Institute, Rochester Institute of Technology, Syracuse University, SUNY Maritime College and Purchase College, the University of Rochester, and several schools in the Touro College & University System.

“We are filing it for a class, looking for other folks who have paid out of pocket or prevented entirely from being able to get pregnant because of their sexual orientation or gender identity in this kind of provision in a health care plan,” Leòn said.

A spokesperson for Aetna, based in Connecticut, issued a statement via email: “We learned of this suit only this morning and are still actively investigating the facts.  Aetna is committed to equal access to infertility coverage and reproductive health coverage for all its members, and we will continue to strive toward improving access to services for our entire membership.”

The complaint seeks injunctive relief to change Aetna’s policies, plus damages. It claims Aetna’s policy violates the anti-discrimination provisions of the Patient Protection and Affordable Care Act and city and state human rights laws in New York.

“Aetna therefore imposes significant out-of-pocket costs on such LGBTQ individuals that it does not impose on others before allowing LGBTQ individuals to qualify for Aetna’s insurance coverage for fertility treatment,” the complaint says. “At worst, these exorbitant costs are prohibitive and entirely prevent people who are unable to shoulder them—disproportionately LGBTQ people of color—from becoming pregnant and starting a family.”

The complaint also claims the New York Department of Financial Services, which regulates health insurance companies, issued a bulletin in February of this year stating that policies requiring LGBTQ+ individuals to pay out of pocket before obtaining coverage for fertility treatments constitute illegal discrimination on the basis of gender identity and sexual orientation.

“Aetna’s discrimination is deliberate,” says the complaint.

Leòn is the former interim director for State Abortion Access, and senior counsel, at the National Women’s Law Center, which is in Washington D.C. Zoe Salzman, a partner at Emery Celli who also is involved in the case, represented one of the women interviewed as part of the New York Attorney General’s investigation into sexual harassment allegations against former New York Governor Andrew Cuomo.

This suit was surfaced by BenefitsPRO sister site, Law.com Radar, a source for high-speed legal news and litigation updates personalized to your practice. Law.com Radar publishes daily updates on just-filed federal cases like this one. Click here to get started and be first to know about new suits in your region, practice area or client sector.