Federal district court denies Aetna’s motion to dismiss class action lawsuit alleging Aetna’s fertility policies discriminate against LGBTQ people

On February 29, 2024, U.S. District Court Judge Haywood Gilliam denied Aetna’s motion to dismiss a case alleging that Aetna’s policies discriminate against LGBTQ people seeking fertility treatment coverage nationwide.

The lawsuit, which Altshuler Berzon LLP, together with the National Women’s Law Center (NWLC) and Katz Banks Kumin LLP, originally filed in April 2023, alleges that Aetna’s discriminatory infertility policy requires LGBTQ people who wish to become pregnant to pay more and wait longer before accessing the fertility benefits covered by their Aetna health plans, compared to those in heterosexual relationships. Aetna makes fertility treatments readily accessible to plan members in heterosexual relationships who seek them but requires LGBTQ plan members who wish to have children with their partners to submit proof that they have undergone six or 12 cycles (depending on age) of arduous and expensive artificial insemination treatments – among the very fertility treatments for which they seek coverage – before they can access the fertility benefits included in their health plans.

In denying Aetna’s motion to dismiss, Judge Gilliam rejected Aetna’s argument that its fertility policy is “facially neutral,” ruling that Plaintiff Mara Berton has plausibly alleged that she and others Aetna members with same-sex partners face “inherently different and more demanding burdens” under Aetna’s fertility coverage policy. Importantly, Judge Gilliam held that a policy that makes access to fertility coverage inherently more burdensome for LGBTQ plan members violates Section 1557 of the Affordable Care Act, which prohibits discrimination in health care based on sex, including sexual orientation and gender identity. This ruling is a major step forward in ensuring that LGBTQ people have equal access to health care benefits, including fertility treatment coverage.

The court’s decision can be found here, and further information is available here.