A bill (AB 460) filed by California assemblyman Tom Ammiano (D-San Francisco) would require that health insurers be legally required to offer infertility treatment for gay couples. It would also make refusing to do so a crime.
Current California law requires group health plans to offer coverage for infertility treatments with the exception of in vitro fertilization (IVF). If such coverage is purchased, benefits must be paid whenever “a demonstrated condition recognized by a licensed physician and surgeon as a cause for infertility” has been diagnosed—or upon “the inability to conceive a pregnancy or to carry a pregnancy to a live birth after a year of regular sexual relations without contraception.” Thus, under current law, diagnosis of a physical reason for the inability to conceive or sire a child is not required. It is enough that a couple tried to get pregnant for a year and failed.
Currently, it has to be proved by a licensed physician that there is a condition causing the infertility. Also, if there is an “inability to conceive a pregnancy or to carry a pregnancy to a live birth,” that would be covered as well. Pretty straight forward stuff: two people engaging in an activity that at least has a chance of ending in the female becoming pregnant, but for some reason it does not happen.
What AB 460 states is that even though it is not possible for sex between homosexuals to ever lead to a person becoming pregnant, they should still get health coverage. Even if there are no fertility problems.
This raises a cogent question: Could AB 460 be construed to require insurance companies to pay for infertility treatments for gay couples simply because their sexual unions cannot produce children? For example, might the law require that insurance pay for an insured lesbian’s artificial insemination, even if she is fecund, based solely on her choice not to have heterosexual intercourse?
It would seem so. There is no requirement that actual infertility be diagnosed. Nor is there a requirement that the gay “infertile” patient seeking coverage for treatment have tried and failed to conceive or sire a child through any heterosexual means, whether natural or artificial. Moreover, the bill would still define infertility as engaging in sexual intimacy without conceiving for one year, regardless of whether the relations were heterosexual or homosexual. Indeed, the bill has been filed precisely because the one-year definition purportedly has been applied in a discriminatory fashion by insurance companies to the detriment of gay individuals and couples who want to have children.
Then to the politics of it:
Nor is the bill really about equality. If it merely provided coverage for gays and lesbians with physiological fertility problems, that would guarantee equal access to medical treatment. But AB 460 would create a special right, since heterosexual individuals or couples would still have to demonstrate biological infertility—through either diagnosis or failed attempts—while gays and lesbians would be deemed legally infertile solely by reason of their sexual orientation. Needless to say, this would push health costs higher…
..In this country, the Affordable Care Act already requires religious organizations and private business owners to provide free contraception, sterilization, and abortifacient coverage for employees even when doing so violates the organization’s or employer’s religious beliefs. That mandate is being challenged in court, and according to legal briefs filed in support of it by the Obama Department of Justice, one of its primary purposes is to promote “gender equality.”