A same-sex married couple said in a complaint filed Tuesday that the City of New York discriminated against them in denying them in vitro fertilization coverage under the city’s insurance plan for employees.
The couple, Nicholas Maggipinto, 36, and Corey Briskin, 33, claim the policy discriminates against them based on their sex and sexual orientation and that if they were female or in a heterosexual relationship they would have access to the I.V.F. benefits that city employees are entitled to. Mr. Briskin was, until recently, an assistant district attorney.
Under the city’s insurance benefits policy, a covered person is only eligible for such services when they are deemed infertile. The policy defines infertility as the inability to conceive after “12 months of unprotected intercourse,” or intrauterine insemination — a procedure that inserts sperm directly inside a uterus — for a period of time.
Intercourse is not defined in the policy, but the complaint claims New York City and its insurers “have interpreted it to mean intercourse between a man and a female.”
That language, the complaint said, made it impossible for Mr. Briskin and Mr. Maggipinto, who will need to use a surrogate, to ever be deemed infertile, effectively blocking them from receiving any I.V.F. insurance coverage.
The Office of Labor Relations, the city department that handles employee insurance, did not respond to calls about their policy. A spokesman for the mayor’s office said the city meets all New York State mandate requirements for I.V.F. coverage.
The complaint with the Equal Employment Opportunity Commission was filed in anticipation of filing a class-action lawsuit, a lawyer for the couple, Peter Romer-Friedman, said.
Mr. Briskin said after gay marriage became legal across the country he never would have imagined that fighting for I.V.F. benefits would be a new obstacle gay men would have to overcome.
“It’s mind blowing that in 2022 we’re still having this conversation about a policy that so clearly excludes gay men because of horribly antiquated views of homosexuality,” he said. “We got the ability to get married and the rest would have been kind of smooth sailing, but we were sorely mistaken.”
The couple claims the policy reinforces the idea that gay men are not fit to be parents.
Mr. Romer-Friedman said that along with hopes the city will change the policy to be inclusive of gay men, the couple is also seeking monetary compensation for themselves and other gay male employees who have been denied benefits in the past.
Mr. Maggipinto said: “The other thing that we don’t want to lose sight of is that we want to bring home a baby, and short of getting the benefit, we can’t do that from a financial perspective. We just don’t have the money.”
The couple estimated that the entire process, including the surrogate’s fee and multiple rounds of I.V.F., could cost between $150,000 and $200,000.
Mr. Briskin began working for the city as an assistant district attorney in the New York County District Attorney’s Office in 2017 and left earlier this year. He and Mr. Maggipinto, a corporate lawyer, hoped his government job would offset some of the costs of I.V.F. for a surrogate since the city provides infertility insurance benefits that included covering three cycles of I.V.F.
(Though he is now a law clerk to a federal judge, Mr. Briskin is still covered under the city’s health plan under a federal law that allows employees who leave an employer to stay on their employers’ insurance plans if they pay the full premium.)
“Corey sacrificed making hundreds of thousands of dollars to be a public servant, and in my view, made that up in benefits,” Mr. Maggipinto said. “But these are now benefits, that in a very important way, we’re not being given.”
According to the complaint, after discussing with their fertility doctor what they would need to do to start a family, Mr. Briskin contacted the City’s Office of Labor Relations and a human resources representative in his office in June 2021 to request I.V.F. coverage for those services.
They were denied, the couple said, so the following month they turned to New York City Law Department, saying that they wanted equal treatment and a change in the policy.
Mr. Romer-Friedman said: “The response that we got from the city’s lawyers was that they’re not going to change the policy. And they weren’t going to talk to us about changing the policy.”
Currently 19 states have some kind of infertility insurance law in place, but only 13 states, including New York, require employers with a certain number of employees to offer insurance coverage for in vitro fertilization specifically, according to Betsy Campbell, chief engagement officer at Resolve: The National Infertility Association, an advocacy group.
It’s unclear how many cities across the country offer I.V.F. coverage to city employees, but Delaware, Maryland, Massachusetts, and New Jersey offer I.V.F. coverage to their state employees, Ms. Campbell said.
The written language of most mandates and insurance guidelines usually define infertility in heterosexual terms no matter employees’ public or private sector status. Straight couples must attempt to get pregnant for a year before receiving any financial help.
“I think there are a number of I.V.F. laws that still use a heteronormative definition of infertility that does discriminate against the L.G.B.T. community,” Ms. Campbell said.
Though lesbian couples and single women sometimes have to pay out-of-pocket costs first, most insurance policies also allow them to meet the definition of infertile through intrauterine insemination. Victoria Ferrara, a Connecticut attorney specializing in assisted reproductive technology law, said same-sex male couples are frequently discriminated against in policies.
“They can’t even try to get pregnant,” Ms. Ferrara, who also runs a surrogacy agency, said. “So they don’t meet this hyper-technical definition of infertility. And that’s been the excuse that the insurance companies are using to deny them benefits.”
