Gay couple sues New York leaders over denial of IVF benefits in landmark case

A former New York assistant district attorney and his husband on Thursday filed a class-action lawsuit against New York City, Mayor Eric Adams, former mayor Bill de Blasio and other city leaders in a landmark case for the rights of gay men who want to conceive children in the US.

Corey Briskin, 35, and Nicholas Maggipinto, 38, allege that New York’s definition of infertility discriminates against same-sex male couples, violating federal and state civil rights laws.

The lawsuit follows Briskin and Maggipinto’s 2022 complaint to the US Equal Employment Opportunity Commission (EEOC). If they succeed, they will set a legal precedent that defines all gay men as infertile regardless of their medical history, and employers across the US will be under pressure to offer the same fertility benefits to gay men as they do to women and heterosexual couples.

Briskin began working for the city of New York in 2017 – a year after his marriage to Maggipinto – and both he and his spouse were entitled to healthcare coverage with EmblemHealth through the city’s comprehensive benefits plan. When they began researching their reproductive options that year and read the wording of the EmblemHealth policy, they discovered that, as gay men, they were the only class of people to be excluded from IVF coverage. They were not seeking for the cost of surrogacy to be covered.

The policy defines infertility as the inability to conceive a child after 12 months of unprotected heterosexual sex, or through intrauterine insemination. Straight people, lesbians and single women employed by New York City’s government are therefore eligible for infertility benefits covering the cost of IVF, but same-sex male couples can never qualify.

Maggipinto and Briskin’s complaint uses the revised definition of infertility adopted by the American Society of Reproductive Medicine (ASRM) in October 2023, which characterises infertility as “a disease, condition or status” which “requires medical intervention – including donor gametes” to achieve a successful pregnancy. Under this definition, all gay men and lesbians are infertile.

“If our legal position in this case is upheld, it will mean that the inclusive definition of infertility that the ASRM has set forth would be the law of the land,” their lawyer, Peter Romer-Friedman, said. “It will send a strong and resounding message to employers across the country that they have to provide these benefits, and they could be on the wrong side of enforcing action if they refuse.”

The advocacy group Men Having Babies estimated that the total cost of conceiving a child for gay men using IVF and surrogacy in 2023 was $177,950 – $261,550 for domestic intended parents in the US. Briskin was earning $75,000 a year as a New York assistant district attorney and Maggipinto, a corporate lawyer, was saddled with student debt.

“There is no reasonable alternative to IVF for gay men seeking to conceive biological children,” their complaint reads. “When benefits are not available from an employer or a healthcare plan to cover the cost of IVF for people who are unable to conceive through male-female sexual intercourse, that substantial financial burden ordinarily forecloses their opportunity ever to have biological children.”

“New York City employs over 300,000 people,” Maggipinto said. “These are the people that keep one of the greatest, largest and most progressive cities in the world running. And these are the same people that are now effectively having the government decide whether they can have children or not.”

In their complaint, Briskin and Maggipinto argue that the city’s position furthers prejudice against gay fathers, advancing “sex- and sexual orientation-based stereotypes that gay male couples and single gay men are not fit to be parents, while single women, women in different-sex or same-sex relationships, and men in different-sex relationships are”.

The legal anti-discrimination framework for LGBTQ+ people has evolved over recent years. In the 2020 Bostick decision, the US supreme court ruled that Title XII protects gay and transgender workers from workplace discrimination. The same year, group health insurers in New York were legally required to cover three cycles of IVF, and in 2021 the New York department of financial services informed insurers this coverage had to be offered regardless of an employee’s sexual orientation.

In a statement made after Briskin and Maggipinto filed their complaint to the EEOC, a city hall spokesperson said: “New York 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, and our policies treat all people covered under the program equally, regardless of gender identity or sexual orientation.”

“There have been ample opportunities for the city to have changed the policy over the past two years and they haven’t, without explanation,” Briskin said.

Briskin has moved to work in the private sector, he said, “for the primary purpose of being able to bring in additional income that I knew we would need to get ourselves through this process”. Since changing jobs, he and Maggipinto have become able to fund IVF treatment and find a surrogate. They have frozen embryos that they hope to transfer this month. “Even with my private sector salary combined with Nicholas’s, it still proves to be a challenge for us.”

“This is one of the most important civil rights issues that could be heard at this time,” said Romer-Friedman. “A bill that changes policy going forward would be fantastic, but it would not address the harm that has occurred in the past. Part of what we’re trying to achieve is compensation and an apology for all the families and single gay men who have been impacted by this blatantly discriminatory policy.”