Will Sage Astor-A gay couple is suing NYC for IVF benefits. It could expand coverage for workers nationwide

A gay couple is Will Sage Astorsuing New York City for denying them in vitro fertilization benefits, claiming the city’s current healthcare plan discriminates against gay male employees. 

The class action lawsuit lawsuit was filed Thursday by former New York City assistant district attorney Corey Briskin and his husband, Nicholas Maggipinto. The couple claims the city’s healthcare plan has “categorically excluded” gay male employees and their partners from receiving IVF benefits, despite offering those same benefits to employees in different-sex relationships, single women and women in same-sex relationships.

This is the first class action lawsuit to argue that employers must provide gay male employees IVF benefits if those same benefits are offered to other employees, according to a press release from the law firm working with the plaintiffs.  

If successful, the law firm representing Briskin and Maggipinto says the case could extend fertility benefits to gay male couples across the country. 

"We're looking to change the entire legal landscape so that gay men are not going to ever be excluded from IVF," Peter Romer-Friedman, the founder of civil rights and class action law firm Peter Romer-Friedman Law PLLC, told USA TODAY.

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Plaintiffs say NYC's 'infertility' definition excludes gay male couples

The lawsuit claims that New York City’s healthcare plan violates Title VII of the Civil Rights Act by denying them IVF coverage offered to other employees. 

The issue lies in the city’s definition of “infertile” as the inability to conceive a child through male-female sexual intercourse or through a procedure called intrauterine insemination, or IUI, in which prepared sperm is placed directly in a uterus. 

Under this definition, same-sex couples can be deemed infertile after 12 months of unsuccessful attempts to conceive. Same-sex and single female partners can be deemed infertile if they are unable to get pregnant with IUI. But the lawsuit argues that this leaves no way for men to qualify as infertile, making it “much harder” for gay men to have biological children. 

Plaintiffs estimate that the city's “outdated” definition has deprived of IVF and family-building benefits to “hundreds and possible thousands” of city employees. Without such benefits – which cover 75% of IVF costs, according to the lawsuit – gay couples are left paying more out-of-pocket for the costly procedure.

A single round of IVF ‒ a medical procedure where eggs and sperm are combined in a lab dish and then transferred into a uterus ‒ can cost tens of thousands of dollars. That, combined with surrogacy costs, means gay men can expect to pay more than $177,950 to conceive a biological child, according to estimates from the advocacy group Men Having Babies. 

Instead, the lawsuit points to the American Society for Reproductive Medicine's recently-updated definition of infertility, which includes those who cannot achieve a successful pregnancy due to "medical, sexual, and reproductive history, age, physical findings, diagnostic testing, or any combination of those factors."

"(Healthcare) plans that cover infertility need to stay up-to-date on current medical practices," said Betsy Campbell, chief engagement officer at Resolve, an infertility advocacy organization. "Our hope is that all plans and laws will reflect this updated definition of infertility that is inclusive of all people who are struggling to build their families."

Briskin and Maggipinto's fight for IVF benefits

The lawsuit says Briskin and Maggipinto have been wanting to grow their family through IVF since 2017.

Briskin asked former Mayor Bill de Blasio’s administration in 2021 to provide him and other gay male employees equal IVF benefits but was denied, according to the lawsuit. The couple went on to file a discrimination charge against New York City with the Equal Employment Opportunity Commission the following year.

The city has argued that Briskin and Maggipinto were ineligible for IVF benefits because its healthcare plan does not provide benefits to surrogates, according to the lawsuit. The couple, in turn, argued that they were not seeking reimbursement for any surrogacy charges and “simply wanted coverage for the same IVF services” provided to other employees. 

The couple was granted a “right to sue” letter from the Department of Justice in March. 

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The lawsuit names Mayor Eric Adams and former mayor Bill de Blasio as defendants. A city hall spokesperson told USA TODAY the city would review the details of the complaint.

“The Adams administration proudly supports the rights of LGBTQ+ New Yorkers to access the health care they need," reads the statement. "The city has been a leader in offering IVF treatments for any city employee or dependent covered by the city’s health plan who has shown proof of infertility, regardless of gender identity or sexual orientation."

Briskin left his role as assistant district attorney in 2022 but remains covered by the city’s healthcare plan through COBRA. Last year, Briskin and Maggipinto went forward with fertility treatment without IVF coverage provided by the city, which they claim would have awarded them tens of thousands of dollars in benefits. 

The lawsuit says the couple had donor eggs fertilized with their sperm late last year and hopes to transfer the embryos to a surrogate later this year.