Married, divorced, and now happily cohabitating, Marsha Greene is trying to get pregnant with her partner, a nice, divorced guy who also wants a baby but not another ring. All would be perfect, except that Marsha, at 33, has discovered that she has diminished ovarian reserves. That means Marsha’s eggs are few and far between; the ones she’s got aren’t in terribly good shape. Marsha’s doctors have recommended she start with IUI (intrauterine insemination) and, if that does not work, move to IVF (in vitro fertilization), which can run $10,000 a round.
Marsha, who lives in Maryland, has insurance—CareFirst Blue Cross Blue Shield—which does cover fertility treatments. But her application for coverage has been tripped up by her domestic partnership. Singletons, it turns out, simply don’t meet the criteria. In Maryland—as well as Arkansas, Hawaii, Rhode Island, and Texas—the mandate for insurance companies to cover or offer fertility treatments only applies to married couples. CareFirst advised her that because of state regulations, it is “unable to cover any procedure, unless it is carried out with my spouse’s sperm,” Marsha told me by e-mail.
Of course CareFirst isn’t “unable”—it’s unwilling, given that it believes it isn’t legally obliged to provide care. A spokesman for Maryland’s insurance commission confirmed on background that, due to the wording of the law, which does indeed specify the use of a patient’s spouse’s sperm, no unmarried couples should expect help with fertility payments from insurance providers. Those left off the mandate potentially include a broad swath of people who might want the coverage: single people, couples in which the “spouse’s sperm” has some problems due to male factor infertility, and gay or lesbian couples—this last category especially might become a big legal pretzel for Maryland very soon. I asked the insurance gurus what would happen to married gay couples now that Maryland Attorney General Douglas F. Gansler jubilantly promised to honor all same-sex marriages performed out of state (namely, next door, in D.C.). The insurance enforcers said that hadn’t been worked out yet.
The debate about covering fertility treatments has hung around the edges of the national health care conversation for many years. Some 7.1 million women between the ages of 15 and 44 in the United States are considered to have “impaired fecundity”—characterized by the Centers for Disease Control as one year of unprotected intercourse without conceiving. (Although several states, including Maryland, define it as two years or longer.) Of that same age group, 7.3 million have sought fertility services, also according to the Centers for Disease Control, and some have gone to extreme measures to pay for these expensive treatments. Some women have gotten a diagnosis of infertility only to have it become a pre-existing condition blocking them from future insurance coverage, even if their insurance never paid a dime toward fertility treatments.
At a very basic level, no one is quite sure whether to treat infertility as a disease, though lawmakers seem inclined to believe it is one. Last year, the Family Building Act of 2009 was introduced in the House and Senate, which would require group health plans to cover certain infertility treatments to women and men regardless of marital status. In the meantime, fertility was left out of the health care reform debate. “Look, we can’t manage to provide health care for everyone,” says Sean Tipton, director of public affairs for the American Society of Reproductive Medicine. “And America doesn’t have the best track record when it comes to [covering] reproductive medicine anyway. So put those two facts together and it paints a fairly dim picture in terms of infertility coverage.”
But even if it is covered, that does not solve the problem of states that exclude unmarried couples. Tipton believes that, generally, the laws stipulating marital status were a nod to those squeamish about the unmarried wanting to be parents. Maryland’s mandate, enacted more than 20 years ago, “was sort of a way to appease people [who believed] that this is just weird and wrong, that you shouldn’t help single people” get pregnant, he says. “But we understand that infertility, as a disease, does not care if a woman is married or not.” In some states the issue is more explicitly tied up with controversy over gay rights. In 2008, Guadeloupe Benitez, a lesbian denied IVF by her Christian doctors, went to the California Supreme Court. The court ruled unanimously that doctors could not hold treatment from gay men or lesbians based on religious beliefs. Some Tennessee state legislators, in their zeal to do away with gay parenting, have proposed a bill which would make it illegal for any unmarried person to use embryo transfer. In other states, that battle has also extended to parenting by adoption: Arkansas and Utah state laws now prevents all unmarried couples from adopting; Mississippi and Florida ban gay men and lesbians specifically.
Back in Maryland, Marsha’s is considering how to pay for her treatments. Next month she is initiating a cycle of IUI and paying $1,260 out of pocket (approximately $1,000 for hormone medication and $260 for the IUI). “I can afford to do this maybe three times, so I am hopeful that it will work quickly,” she said. If it doesn’t, she is contemplating purchasing a $27,000 “package” of six IVF cycles to hedge her bets and get a small discount. If none of this works, she will have to contemplate getting married.
But there may be another angle for her to pursue. The insurance limitations, it turns out, butt up against Maryland’s strong legal protections for the unmarried, explains Jill Morrison, senior counsel at the National Women’s Law Center. “CareFirst implies that it is prohibited from providing coverage to Marsha, when in fact, because of the discriminatory infertility law, it is simply not required to,” Ms. Morrison explained. “The provision that requires insurance coverage only in cases where a woman uses her spouse’s sperm clearly contradicts the state’s strong public policy disfavoring discrimination based on marital status.”
Even better for Marsha and her partner, Morrison said, the state of Maryland has a 40-year-old policy against contracting with businesses that discriminate on the basis of marital status. Morrison pointed out that the state contracts with CareFirst itself in the Maryland Health Insurance Plan. “The state should therefore strongly discourage CareFirst from engaging in discrimination based on marital status,” said Morrison. She suggested informing the state’s attorney general and Human Rights Commission about CareFirst’s policy. Marsha has decided to pursue her case against CareFirst, represented by the National Women’s Law Center. If she succeeds, she may very well pave the way for unmarried and gay and lesbian Marylanders to seek the same benefits as their straight, married neighbors. It’s surely far better than her current option—a shotgun wedding to get pregnant.