Biden Administration Considers Obamacare Change to Extend In-Vitro Fertilization Coverage to Gay Couples

The Biden administration is reportedly considering mandating that certain health plans cover in-vitro fertilization procedures for gay policyholders seeking to have children.

The Department of Health and Human Services may change the definition of infertility, under Section 1557 of government-funded Obamacare and some group health insurance plans, to expand eligibility for IVF to gay couples who can’t naturally conceive, Bloomberg Law reported. Section 1557 “prohibits discrimination on the basis of race, color, national origin, sex, age, and disability in covered health programs or activities.”

“This is just one of those spaces where the way that we think about what is necessary medical care is running to catch up with our understanding of intimate relationships,” Nicole Huberfeld, a professor at the Boston University School of Law and School of Public Health, told Bloomberg.

The definition of infertility for some of these insurers, derived from the CDC, uses the biological heterosexual reproductive standard or “not being able to get pregnant (conceive) after one year (or longer) of unprotected sex” to determine whether the policyholders are entitled to coverage. Since it is impossible for homosexual couples to get pregnant, the regulation change aims at being more inclusive by providing them with a paid fertility procedure designed for heterosexual couples.

“Is that a discriminatory definition?” Huberfeld said. “In a world where same-sex couples have easier access to methods of reproduction, we probably should reconsider the definition of infertility and even the terminology itself because those couples aren’t suffering infertility. They’re seeking fertility by different means.”

About 10.8 percent of Americans with health insurance would be affected by the policy change, according to data from the Kaiser Family Foundation.

Roger Severino, the former head of HHS’ Office of Civil Rights during the Trump administration rejected the regulation change as an illogical proposition.

“It is absurd to say it’s discriminatory,” he told Bloomberg. “Under this flawed logic, two men would be entitled to IVF treatments being administered to a woman because they have chosen to be in a same-sex relationship.”

“To accept this would push our civil rights laws past the breaking point,” he added.

While the Obama administration interpreted the anti-discrimination “sex” provision of Section 1557 to include gender identity and sexual orientation, Trump ended that. The issue of LGBT fertility discrimination is already involved in litigation, with insurance provider Aetna Inc. facing a lawsuit alleging that its definition of infertility excludes gay couples.