Gay Couple Sues New York City Over Exclusion From IVF Workplace Benefits

Corey Briskin and Nicholas Maggipinto say an outdated and discriminatory concept of "infertility" has prevented them from trying to have a child.
Corey Briskin (bottom) and Nicholas Maggipinto have filed a charge against the city with the Equal Employment Opportunity Commission.
Corey Briskin (bottom) and Nicholas Maggipinto have filed a charge against the city with the Equal Employment Opportunity Commission.
Courtesy of Corey Briskin and Nicholas Maggipinto

After getting married in 2016, Corey Briskin and Nicholas Maggipinto hoped to start a family. They met with a fertility specialist and decided to pursue in vitro fertilization, a process that can be notoriously expensive, especially without health insurance.

The Brooklyn-based couple figured their best shot at affording IVF would be through Briskin鈥檚 health plan as an employee of New York City, where he worked as an assistant district attorney starting in 2017. But they discovered that, as gay men, they didn鈥檛 meet the health plan鈥檚 definition of infertile, and therefore couldn鈥檛 tap into the IVF benefits.

Briskin said he contacted different city offices trying to get IVF services covered, and eventually told the corporation counsel, which represents the city in legal disputes, that he believed the denials were discriminatory. Years slipped by as he and Maggipinto put a hold on trying to have a child.

鈥淚 think what we have here is an old paradigm of what families should look like,鈥 said Maggipinto, who is also a lawyer. 鈥淵ou have policymakers who think a family consists of a man and a woman and two and a half children. ... But that鈥檚 not what my family will look like.鈥

On Tuesday, Briskin and Maggipinto filed a class-action complaint with the U.S. Equal Employment Opportunity Commission, alleging that the exclusion of same-sex male couples from IVF coverage violates federal and state civil rights laws. They hope their case will help extend IVF benefits to more gay men in New York and possibly beyond, and prompt major employers and health insurance companies to reconsider their policies.

The reality is, without insurance coverage we were left having to pay for the entire process by ourselves. It鈥檚 way outside of our spending ability.

Corey Briskin

In response, a city hall spokesperson said the administration of Mayor Eric Adams 鈥減roudly supports the rights of LGBTQ+ New Yorkers to access the health care they need.鈥

鈥淣ew York City has been a leader in offering IVF treatments for any city employee or dependent covered by the city鈥檚 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,鈥 the spokesperson said, adding that the city would review the EEOC complaint once it was received.

Many health plans that cover IVF services carve out same-sex couples because the plans tend to define intercourse in heterosexual and cisgender terms. Briskin鈥檚 plan considers someone infertile if they can鈥檛 conceive after 12 months of unprotected sex, or, in the case of a cisgender woman without a male partner, after several attempts at intrauterine insemination 鈥 a situation that would cover a straight or gay woman who couldn鈥檛 get pregnant with a sperm donor.

Those definitions, Briskin and Maggipinto say in their complaint, leave gay men as 鈥渢he only type of plan participants categorically excluded from any fertility benefits at all.鈥

By many estimates, the average cost of a single IVF cycle can run between $12,000 and $17,000, putting it beyond the reach of many couples when not covered by insurance. Briskin and Maggipinto would need both an egg donor and a surrogate. The costs of surrogacy, which are separate and typically not covered by insurance, can run well above $100,000.

A growing number of companies are offering fertility benefits to recruit and retain talent. Forty-two percent of employers with at least 20,000 workers had coverage for IVF treatment in 2020, up from 36% just five years earlier, according to surveys by the health and benefits consulting firm Mercer. Meanwhile, some states have passed laws to force insurers to make IVF more accessible.

A New York law implemented in 2020 requires large group insurance plans covering 100 workers or more to provide at least three cycles of IVF. In 2021, New York鈥檚 Department of Financial Services informed insurers that they had to provide the coverage regardless of a policyholder鈥檚 sexual orientation.

Briskin and Maggipinto said that despite being lawyers, having a child through IVF has never been financially feasible without insurance coverage. The couple鈥檚 fertility specialist told them to estimate somewhere between $150,000 and $200,000 to bear a child through IVF once surrogacy is factored in.

Briskin said his salary was in the $60,000 range when he joined the Manhattan district attorney鈥檚 office in 2017. Maggipinto earned more as an attorney in the private sector, but he was shouldering a six-figure student-debt burden following law school, and Briskin had the better benefits as a management-level city employee with access to the management benefits fund. (Briskin recently left the office for a federal clerkship, but he is still covered by the city鈥檚 insurance plan through COBRA.)

You have policymakers who think a family consists of a man and a woman and two and a half children. ... But that鈥檚 not what my family will look like.

Nicholas Maggipinto

Briskin says he contacted his office鈥檚 human resources department, as well as the city鈥檚 Office of Labor Relations, after New York said insurers must cover IVF services regardless of sexual orientation. He says his requests for coverage were denied, and that the insurance company, EmblemHealth, referred him to the website.

鈥淭he reality is, without insurance coverage we were left having to pay for the entire process by ourselves,鈥 Briskin said. 鈥淚t鈥檚 way outside of our spending ability.鈥

Briskin and Maggipinto argue that the city has run afoul of both state and city human rights laws that bar discrimination, as well as Section 7 of the Civil Rights Act. In the 2020 case Bostock v. Clayton County, the Supreme Court ruled that Title VII protects workers from being discriminated against based on their sexual orientation.

Briskin and Maggipinto are not the first gay men to tussle with insurers over IVF benefits. An Illinois couple found both an egg donor and a surrogate but discovered they did not have the IVF benefits that other Cook County employees apparently had. They said a Blue Cross Blue Shield of Illinois agent told them it was because they were a male-male couple, according to NBC News.

They fought the claim and were ultimately reimbursed a small share of the egg-retrieval cost.

Peter Romer-Friedman, a civil rights lawyer representing Briskin and Maggipinto, said there is much more to LGBTQ rights in the workplace than whether someone can be fired, passed over for a job or paid a lower wage than someone else. Despite the social progress brought by cases like Bostock, Romer-Friedman said his clients aren鈥檛 being treated equally in the context of workplace benefits.

鈥淭here are still a lot of outdated stereotypes about what a family should look like, and what are the services a family needs or doesn鈥檛 need as employees,鈥 he said.

Romer-Friedman compared it to denying coverage based on race or any other protected class under the law.

Maggipinto said he often feels as though the LGBTQ community had made 鈥渁 generation鈥檚 worth of progress鈥 in a short span, but that the exclusion from IVF benefits amounts to 鈥渁 step backwards.鈥

The couple said they are not interested in reaching a legal settlement with the city that doesn鈥檛 include a change in the policy. Briskin is 33 years old, and Maggipinto is 36. They are now six years into their marriage and already beyond the age at which they first planned to start a family.

鈥淲e鈥檙e willing to be the people who wage this battle,鈥 said Briskin. 鈥淏ut in the meantime, we鈥檙e just getting older and not having children.鈥

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