A gay couple is suing New York City for denying in vitro fertilization (IVF) benefits to gay male city employees and their partners, throwing additional financial obstacles in the way of their becoming parents.
Nicholas Maggipinto, 38, and Corey Briskin, 35, claim the city is discriminating against male same-sex couples based on their sex and sexual orientation and, in so doing, is violating federal, state, and local laws.
Among the statutes the couple claims the city is violating by allowing for IVF coverage for infertile heterosexual couples, unmarried women, and lesbian couples are Title VII, the federal law prohibiting sex-based discrimination; the Equal Protection and Due Process Clauses of the 14th Amendment to the U.S. Constitution; and New York state and city human rights laws.
Maggipinto and Briskin told NBC News they have been talking about having children since 2014, ahead of their engagement.
The couple, who married in 2016, had planned to use IVF to combine their sperm with an egg in a lab, and to work with an agency to hire a gestational surrogate who would have the fertilized egg implanted in their uterus and carry the baby to term.
Maggipinto and Briskin, an assistant district attorney for the city, had hoped to have the IVF covered by insurance and planned to pay for the surrogacy out of pocket.
But the city’s health plan only covers IVF benefits for employees who meet its definition of “infertility,” defined as the inability to conceive either through male-female unprotected intercourse for a period of 12 months, or through intrauterine insemination, known as IUI.
Neither of those circumstances apply to gay men seeking to grow their families, categorically discriminating against them. Both Maggipinto and Briskin made further inquiries about IVF benefits with the city’s Office of Labor Relations and a human resources employee at the district attorney’s office, but kept receiving the same response: they didn’t qualify under the city health plan’s definition of “infertility.”
Briskin has since left his job with the city, but still receives coverage under the plan through a federal law called COBRA, which allows employees to continue to receive health care coverage from their former employer for up to three years if they pay the full premium.
Briskin and Maggipinto filed a charge of discrimination with the U.S. Equal Employment Opportunity Commission in April 2022, hoping that the complaints would prompt the city to change its policy. But the city responded to the charge arguing that it doesn’t provide IVF benefits to surrogates, and therefore, would not provide benefits to Briskin and Maggipinto.
Following the EEOC’s investigation, the couple subsequently sued the city last week, stating that the city’s arguments to defend itself were faulty, as they have never sought any benefits for a surrogate, but rather coverage for the costs of fertilization.
“They’re seeking fertilization of donated eggs with their sperm, and those are things that are provided to other people under the plan,” Peter Romer-Friedman, one of the couple’s attorneys, told NBC News. “So, in our view, the city offered no legitimate, legal, or factual explanation for treating Corey and Nicholas differently.”
Liz Garcia, a spokesperson for New York City Mayor Eric Adams, told The Washington Post that the city “proudly supports the rights of LGBTQ+ New Yorkers to access the health care they need.”
“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,” Garcia said in a prepared statement. “The city will review the details of the complaint.”
Briskin and Maggipinto are seeking reimbursements for themselves and all similarly-situated same-sex male couples who have been denied coverage since the city’s health plan began covering IVF.
They are hoping to have the policy declared unconstitutional and obtain a court order blocking the city from denying IVF benefits to male same-sex couples.
The lawsuit comes at a time when the science underlying IVF is being challenged by right-wingers who argue that the embryos used in the process are human beings.
The Alabama Supreme Court ruled earlier this year that clinics can be held liable for discarding frozen embryos that were ultimately not carried to term — a move that some reproductive advocates fear will ultimately lead to the abolition of IVF.
That, in turn, would effectively cut of the opportunity for many couples — especially same-sex ones — to start and raise their own families.
“We both had a similar vision about what kind of a life we wanted,” Briskin told the Post about the motivation behind the lawsuit. “And it involved raising children together.”
“You still have government entities deciding who can and can’t have children,” Maggipinto said, noting that even adoption can be harder for same-sex male couples than other couples. “When you base decisions like that on nothing other than sexual orientation, then gay men are being made to look like we can’t be good parents.”
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