Court Allows Discrimination Claim for Fertility Treatment Coverage to Proceed

On February 29, 2024, the Federal District Court of Northern District of California denied Aetna Inc. and Aetna Life Insurance (collectively, Aetna)’s motion to dismiss a case alleging that Aetna health insurance plans discriminate against LGBTQ members seeking fertility treatment coverage by placing additional burdens on couples in same-sex partnerships.

As background, in April 2023, a participant (plaintiff) of a self-insured health plan filed a class action complaint against the plan’s administrator, Aetna, under ACA Section 1557, which prohibits health insurers from discriminating based on a number of characteristics, including sex. The plaintiff alleged that the plan discriminated against her, her wife, and other participants in similar situations based on their sexual orientation by denying them equal access to fertility treatments.

Prior to 2023, the plaintiff’s plan covered fertility treatments for enrollees who were “infertile” based on their inability to conceive after one year (or six months for older participants) of frequent, unprotected heterosexual sexual intercourse or, for women without a male partner, after 12 cycles of donor insemination (six months/six cycles for older participants). The plaintiff alleged that this provided heterosexual couples the option to establish infertility in either of the two ways while giving same-sex couples only one way to be eligible for fertility benefits. In response, the plan was amended to base its coverage determination on “egg-sperm contact” rather than intercourse or insemination, with the definition applicable to “all individuals regardless of sexual orientation or the presence/availability of a reproductive partner.”

Yet the plaintiff claimed that the plan continues to discriminate against LGBTQ members by imposing additional and more arduous prerequisites for fertility treatment access than those applicable to heterosexual couples, and the plan merely removed the references to “heterosexual” and the reference to a “woman without a male partner” in the revised policy. Specifically, the plaintiff contended that heterosexual couples could demonstrate infertility simply by representing that they had had 12 months of frequent intercourse, while same-sex couples were forced to undergo up to 12 cycles of donor insemination, in which each cycle “costs at least hundreds of dollars” and requires the patient to undergo intrusive procedures.

Aetna contended that the plaintiff’s claim of intentional discrimination under Section 1557 should be dismissed because its fertility coverage does not base its definition on a member’s sex or sexual orientation. But the court determined that the plaintiff’s allegation that access to fertility coverage is more burdensome for same-sex partners than different-sex partners was enough to support an adequate claim for adjudication. Therefore, the court denied Aetna’s motion to dismiss on this basis.

This case is in an early stage and at the district court level; courts in other jurisdictions may have ruled differently on the motion to dismiss. However, employers should be aware of the ruling and may want to review their fertility coverage with legal counsel to ensure that their benefits are drafted, offered, and administered in a nondiscriminatory manner. Employers should follow developments in this unsettled area of the law involving the application of Section 1557.

Berton v. Aetna Inc. »