Class Action Alleges Aetna Discriminates Against LGBTQ Individuals by Denying Coverage for Fertility Treatments [UPDATE]

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A proposed class action aims to challenge Aetna’s allegedly discriminatory denial of equal access to fertility treatment for LGBTQ individuals. 

The 23-page lawsuit alleges that although Aetna’s policy provides immediate fertility treatment coverage to those who say they have not gotten pregnant after having unprotected sexual intercourse for 12 months, the company unlawfully requires lesbian, gay, bisexual, transgender, queer, intersex and non-binary individuals who cannot conceive through intercourse due to their sexual orientation or gender identity to pay out of pocket for 12 cycles of fertility treatments, such as intrauterine insemination (IUI) and in vitro fertilization (IVF), before Aetna will provide coverage. 

Per the case, the plaintiff and her spouse are enrolled in Aetna’s Student Health Plan for Columbia University, which the suit says provides broad coverage for IUI and IVF. Because of Aetna’s allegedly discriminatory policy toward LGBTQ individuals looking to have a child through fertility treatments, the plaintiff, her spouse and proposed class members have been forced to pay tens of thousands of dollars out of their own pockets—in the plaintiff’s case nearly $45,000 for one successful pregnancy, the case says—that others are not required to pay to become pregnant. 

“Aetna’s Policy language openly discriminates against Plaintiff and other LGBTQ individuals based on their sexual orientation and gender identity and violates their rights under Section 1557 of the Patient Protection and Affordable Care Act (‘ACA’), the New York State Human Rights Law (‘NYSHRL’), and the New York City Human Rights Law (‘NYCHRL’),” the complaint alleges. 

According to the lawsuit, Aetna’s fertility treatment policy amounts to an illegal tax that “denies the equal rights of LGBTQ individuals to have children.” Moreover, Aetna’s fertility treatment policy disproportionately harms those who may be the least likely to be able to meet the financial threshold the insurer has set in order to have a child, the lawsuit contends. 

“At best, these individuals incur great costs due to Aetna’s Policy language,” the suit 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 suit claims Aetna’s disparate treatment of those immediately covered by its policy versus the 12-month payment barrier that must be overcome by LGBTQ individuals is deliberate, and has been enforced by the company despite the passage of the ACA and the clear definition of sexual discrimination under state and federal law to include LGBTQ individuals. Moreover, the case alleges Aetna was “specifically informed” by a New York State regulator that policies such as the one at issue constitute illegal discrimination on the basis of gender identity and sexual orientation. 

The lawsuit looks to represent all individuals who, while covered by an Aetna student health plan in New York, have been denied coverage for fertility treatment by Aetna because the individual, due to their sexual orientation or gender identity, cannot meet Aetna’s prerequisite of showing a “failure to establish a clinical pregnancy after 12 months of regular, unprotected sexual intercourse,” or six months for those over 35 years old. 

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