In a historic win for the LGBTQ+ community, Aetna reached a settlement today with a group of plaintiffs alleging medical discrimination in their fertility coverage. The insurance company is paying out $2 million to the members of the class action lawsuit, as well as restructuring how they cover fertility for queer couples moving forward. This marks the first big step toward ending fertility-based medical discrimination for LGBTQ+ couples.
The case, Goidel et al. v. Aetna, was filed in September 2021. Couple Emma Goidel and Ilana Caplan came face to face with injustice when trying to have a second child in 2020. Married three years, they were covered under Caplan’s Aetna insurance plan through Columbia University in New York City, where Caplan was pursuing a Doctorate in Nursing Practice. They were overjoyed to find that Aetna – a subsidiary of CVS Health – covered intrauterine insemination (IUI) until they realized coverage was only freely available to people who had struggled to have a baby through heterosexual sex.
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At the time, Aetna covered treatments for birthing people in heterosexual partnerships who claimed they had been unable to become pregnant after six or twelve months (depending on their age) of intercourse. For heterosexual couples, obtaining coverage looked like verbally confirming their private sex lives, being believed, and then gaining access to the help they needed to address their fertility.
Queer couples had a much murkier landscape of what qualified them for reproductive assistance – one that came with a sizeable price tag.
To qualify for coverage as a couple unable to conceive through sex (as is the case with many LGBTQ+ couples), Goidel would have had to complete a year of fertility treatments paid for out of pocket. Depending on a few factors including choice of fertility treatment, that meant up to 12 rounds of unsuccessful treatment paid for out of pocket before coverage kicks in.
In interviews, Goidel called this policy a “queer tax.”
This tax could cost a queer family as much as $100,000 if treatment truly does take a full year. The current options available for coverage are intrauterine insemination (IUI) and in vitro fertilization (IVF), each of which have their own drawbacks and benefits. IVF – the more expensive, intensive, and effective of the two – typically costs more than $30,000 for a single round. IUI, which can be done monthly, cost Goidel and Caplan about $5,000 plus sperm per round, and usually has a 5-15% success rate.
Overall, Goidel and her Caplan went through two rounds of IUI, a miscarriage, and three more unsuccessful rounds of IUI before trying IVF and then, finally, a successful round of IUI. They paid for all of this from their savings. After applying to receive the benefits anyway, Goidel was denied by Aetna specifically because of the nature of her partnership.
In 2021, Goidel brought a federal class action suit against Aetna claiming discrimination on the basis of sex and sexual orientation. Through the National Women’s Law Center, which represents Goidel alongside co-counsel Emery Celli Brinckerhoff & Abady LLP, other couples reached out to participate in the suit.
The Affordable Care Act (ACA) prohibits discrimination in health care based on race, color, national origin, age, disability, and sex. Goidel and the other plaintiffs, Ilana Lee, Madeleine Lee, and Lesley Brown argued that through Section 1557 of the Affordable Car Act, which bans discrimination in health care on the basis of sex, LGBTQ+ couples should be protected from such blatant inequalities.
This is especially true after last week when the Biden administration reinstated Obama-era healthcare protections for LGBTQ+ people that the previous administration had rescinded.
On May 3rd, a settlement was filed in the U.S. District Court for the Southern District of New York. Under the settlement, Aetna denied liability but agreed to modify its clinical policy to ensure eligible plan members will have equal access to fertility treatment regardless of sexual orientation (consistent with guidelines from the Association of the Society of Reproductive Medicine).
Aetna also agreed to introduce a new standard health benefit plan that includes artificial insemination as a benefit for all Aetna members and also to ensure its clinical policies surrounding IVF are no more burdensome for LGBTQ+ people than heterosexual folks.
“We celebrate this significant stride toward achieving justice for LGBTQ+ people who have faced obstacle after obstacle trying to access the health care services that they need to build their families,” said Alison Tanner, Senior Litigation Counsel for Reproductive Rights and Health at the National Women’s Law Center.
Aetna also agreed to pay out a $2 million dollar common fund for additional compensation for class members, as well as the cost of an administrator and special master to allocate the funds. The company also agreed to re-process eligible insurance claims in order to reimburse class members for their out-of-pocket artificial insemination cycles up to the plan limits.
Although this lawsuit was specifically against Aetna, the problem is not unique to the company. Several large insurance companies do not automatically offer coverage for fertility treatments to same-sex couples. Even as more medium and large employers take up fertility coverage for their employees as a recruiting strategy, a 2021 survey found that only 35% included coverage for LGBTQ+ people, who are generally excluded under the current working definition of infertility.
This settlement marks the beginning of righting a wrong that has kept countless hopeful parents from the support and justice they deserve.
“This settlement is a big win for queer families,” Goidel said in a statement. “We hope other insurance companies will follow Aetna’s example and review their policies to make sure everyone has equal access to fertility care.”
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