Aetna Hit with Class Action Over ‘Discriminatory’ Infertility Treatment Coverage

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A proposed class action alleges Aetna has discriminated against non-heterosexual women by denying them equal access to infertility treatments. 

The 22-page lawsuit says that although certain Aetna medical plans provide advanced infertility services benefits for those who wish to have a child but are considered “infertile,” the plaintiff and other non-heterosexual individuals assigned female sex at birth and unable to conceive through coitus are “discriminatorily forced to pay out-of-pocket” for a number of intrauterine insemination (IUI) cycles before they can obtain benefits for infertility treatment services. 

“In short, heterosexual individuals assigned female sex at birth obtain infertility treatment without paying out-of-pocket under the Medical Plan, while non-heterosexual individuals assigned female sex at birth must pay for 6 or more IUI treatments before becoming eligible for infertility treatments under the Medical Plan (which, ironically, includes IUI treatments),” the complaint says. “In this regard, Defendant’s Medical Plan is facially discriminatory against non-heterosexual individuals assigned female sex at birth.” 

According to the lawsuit, the plaintiff’s Aetna plan defines an individual as “infertile” if they are under the age of 35 and have had either 12 months of timed, unprotected coitus or 12 cycles of IUI. The lawsuit alleges the plaintiff and similarly situated non-heterosexual individuals assigned female sex at birth are denied on the basis of their sexual orientation the benefit of choosing how to establish “infertility” without out-of-pocket costs before they can quality for alternative treatment methods. 

“Lacking such a choice, Plaintiff and other non-heterosexual individuals assigned female sex at birth have been excluded from full participation in Defendant’s Medical Plan,” the suit claims, alleging Aetna has willfully and facially violated the Affordable Care Act’s non-discrimination provisions. 

The lawsuit states that the plaintiff, desiring to become pregnant and start a family, submitted to Aetna in 2021 a request to receive IUI benefits but was denied, with the insurer claiming she did not meet the definition of infertile under her plan. In response to the plaintiff’s request that Aetna reconsider the denial, the insurer again denied the woman’s petition, and stated that its actions “are in no way to discriminate against [Plaintiff], but to [apply benefits and] process claims equitably to all plan participants, in accordance with our claims policies and procedures,” the lawsuit says. 

The plaintiff argues, however, that Aetna’s insistence that it is following its own policies and procedures “overlooks” the fact that those policies and procedures are “facially discriminatory.” 

The lawsuit looks to cover: 

“All non-heterosexual individuals who: 1) were assigned ‘female’ at birth; 2) are covered by an Aetna medical or health insurance plan that includes or is governed by the definition of ‘infertility’ appearing in Aetna’s Clinical Policy Bulletin No. 0237 or a substantively similar definition; 3) because of their sexual orientation, cannot engage in coitus; and 4) either (a) submitted a claim for infertility treatment benefits and were denied; (b) paid out-of-pocket for infertility treatment; or (c) will submit and be denied benefits, or pay out-of-pocket, for infertility treatment.” 

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