A Look at the New Jersey Mandate that Perpetuates Homophobia Toward Lesbian Women Seeking Fertility Treatment

In 2016, four lesbians women living in New Jersey filed a lawsuit against various state officials and their insurance providers because a New Jersey mandate regarding infertility and its definition was discriminatory based on sexual orientation. Although the mandate requires that insurance companies in the state provide coverage for expenses associated with the diagnosis of infertility, it subsequently defines infertility as a “disease or condition that results in the abnormal function of the reproductive system such that a female under 35 years old who is unable to conceive after two years of unprotected sexual intercourse [with a male partner].” According to researchers, lesbian women make up 5% of the American population and somewhere between 30 to 50% of those women wish to become mothers, but by use of this definition lesbian women in New Jersey are left with no way to qualify as infertile for purposes of insurance coverage. Understanding that definitions drive diagnosis and diagnoses determine access to care, the New Jersey mandate and similar legislation is discriminatory and represents the institutionalized homophobia towards lesbian women in America, despite the rising trend of lesbian motherhood; to solve the problem at hand we must change the functional definition of infertility to encompass the concept of social infertility, which I will introduce later, in addition to medical infertility.

The lawsuit, known as Krupa et al v. Badolato, involved Erin and Marianne Krupa, Sol Mejias, and Sarah Mills, all lesbian women living in New Jersey who, despite receiving an infertility diagnosis from a medical practitioner, was denied insurance coverage under the aforementioned New Jersey mandate because, as lesbian women in committed relationships, they could not show that they had unprotected sex with a male for the requisite period. The official complaint, accessible through The New York Times, explains that without insurance coverage, the cost of fertility treatments is extremely burdensome for couples to pay out of pocket, essentially forcing them to choose between starting a family and their financial stability. The complaint directly cites the Supreme Court decision Obergefell v. Hodges, a landmark civil rights case that deemed same-sex marriage constitutionally protected under the Fourteenth Amendment. In the majority opinion issued for that case, Justice Anthony Kennedy quotes Cicero, saying “the first bond of society is marriage; next, children; and then the family.” He also later states that “the constitutional marriage right has many aspects, of which childbearing is only one.” Using this logic, the New Jersey mandate would be deemed unconstitutional under the Fourteenth Amendment for denying married lesbian couples their right to bear children. In making these statements, Justice Kennedy’s opinion prescribes itself the framework of reproductive justice, advocating for one of its largest values: the right to parent for all people.

Erin Krupa walked into the fertility clinic with her wife Marianne for the first time in May 2013, excited to be fulfilling their lifelong dreams of motherhood. But when the reproductive endocrinologist told Erin that she had unknowingly been living with stage III endometriosis and had severe cysts on her uterus, rendering her infertile, things got more complicated. Although insurance typically will cover infertility treatments for women with endometriosis, the Krupas were informed that they had been denied coverage under the New Jersey Infertility mandate. This meant that despite having a medical diagnosis of infertility, because Erin was a lesbian in a committed relationship, she could not show that she had unprotected sex with a man for the requisite period and was therefore unprotected by the state mandate to require insurance coverage for infertility treatment. However, if she had walked into the same clinic with a male partner, her medical diagnosis of endometriosis-related infertility would have been sufficient to qualify her for fertility treatment coverage. Erin was being denied insurance coverage entirely because her sexual orientation did not fit the rigid heterosexism of the state mandate. This webpage for the Reproductive Science Center of New Jersey states that recent updates were made to the mandate to allow single and lesbian women to qualify for fertility coverage, however, the fine print tells a different story: “a female without a male partner and under 35 years of age who is unable to conceive after 12 failed attempts of intrauterine insemination under medical supervision.” This requisite then assumes that all single women and lesbian couples seeking fertility coverage in New Jersey are either financially capable of paying out of pocket for a dozen rounds of fertility treatments or have fertility coverage from their employer, which many do not.

One study of lesbian couples found that, of the 28 participants who reported having insurance, 18% received no coverage whatsoever for fertility treatments because it was an “elective procedure.” Many participants in the study also reported feelings of heterosexism at some point in the fertility process, something that is not surprising when one considers the nature of that market. The belief that fertility treatments for lesbian couples are an “elective procedure” is one steeped in homophobia and heterosexism, as the same treatments wouldn’t be considered “elective” for heterosexual women in committed relationships who were diagnosed as infertile. The fact of the matter is: all same-sex couples need some form of fertility treatment or assistance to have children; that’s just how biology goes. But to treat women with the same medical issue differently based solely on their sexuality is a disservice to not only lesbian women but women everywhere. Legislators would be wise to capitalize on this momentous opportunity to change the tone of American discourse surrounding lesbian family planning by adopting a more inclusive definition of infertility.

Social infertility is a concept that has gained traction in recent years among scholars, activists, and medical practitioners who now urge policymakers to join them in adopting a more expansive view on infertility, which creates space for lesbians who don’t otherwise satisfy the current definition. In the 2018 paper, “Expanding the Clinical Definition of Infertility to Include Socially Infertile Individuals and Couples,” bioethicist Lisa Campo-Engelstein and physician Weei Lo recommended changing the clinical definition of infertility to “a condition of an individual with the intent of parenthood but unable to produce conception due to social or physiological limitations within a period of twelve months.” The expanded definition, they argue, would “push the medical community to recognize social infertility as a clinical diagnosis that is treatable with many of the same options already available for physiological infertility… also inform and encourage the policymakers and insurance companies to cover social infertility under existing infertility insurance mandates.” Theoretically, under this expanded definition of social infertility women like Erin Krupa, Sol Mejias and Sarah Mills would all be granted fertility treatment coverage even without a medical diagnosis of infertility.

The World Health Organization, or WHO, tried to adopt more inclusive language regarding infertility in 2015 after a series of discussions were held in Geneva over the definition of infertility. Delegates were unsatisfied with the use of heterosexual sex as a reference point in the medical definition of infertility and decided to add an expansion: infertility could be diagnosed as “an impairment of a person’s capacity to reproduce either as an individual or with his/her partner.” The use of the term “impairment” was hotly contested, with many asserting that it was a demeaning nod to queerness being cast as an impairment. This is something that Lisa Campo-Engelstein, one of the authors of the 2018 paper that proposed the mainstreaming of social infertility, warned against categorizing social infertility as a disease that would risk medicalizing homosexuality. “Medicalization is a double-edged sword,” she said in The New Yorker. “On the one hand, it gives you access, if you have a medical condition, to treatment. But, on the other hand, it may label something that you don’t think, really, is a disease as a disease.” The attempt by the WHO to adopt a more inclusive definition wasn’t entirely in vain, though, as the medicalization of social infertility as a valid definition and concept is necessary and worth pursuing.

It’s virtually undeniable that great strides have been made toward equality for the LGBTQ+ community over the past few decades. But there is still work to be done, especially at the intersection of reproductive justice and queerness. Lesbian women are just a small percentage of a much larger marginalized population of queer individuals with dreams of starting a family but no tangible means to do so. The recognition of infertility as solely a physiological condition defined by heterosexual norms is problematic and perpetuates homophobia and discrimination. The adoption of an expanded definition of infertility to include social infertility as well as physiological limitations will greatly elevate access to and quality of care and would be the greatest attempt at creating a level playing field for reproduction among both straight and gay couples.