How Definitions Restrict Access to Fertility Care for LGBTQ+ Couples

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Abstract

The United States has seen a significant expansion in access to fertility treatments over the past decade, driven by shifting perspectives on infertility and improved technology processes. Despite this progress, access remains uneven across population groups, as financial barriers continue to limit who can pursue fertility care. Insurance coverage of fertility treatment varies across states, and definitions of “infertility” confine access to heterosexual couples. As a result, many LGBTQ+ individuals and couples are excluded from coverage and forced to pay out of pocket. The class action lawsuit Goidel v. Aetna highlights inequality in medical access by tying access to fertility treatment coverage to heterosexual intercourse and imposing additional financial barriers on LGBTQ+ couples. Furthering these inequities, state definitions of “parenthood” further disadvantage LGBTQ+ families by failing to adapt to the increasing diversity of family structures. The Supreme Court case Pavan v. Smith set an important precedent for recognizing nonbiological parents on birth certificates, but leaves room for future loopholes due to the generality of the ruling. Both clinical and policy-level solutions have been proposed to address this discriminatory access gap, but a comprehensive approach requires a combination of both. While nations like Japan and Denmark offer model policy frameworks that U.S. policy makers could adapt domestically, significant work remains to create an inclusive reproductive health system in the global setting. Addressing the financial and legal barriers to fertility care that unnecessarily burden LGBTQ+ couples is essential to ensuring inclusive access and equal opportunities to build families.

I. Introduction

Fertility treatments are increasing in popularity in the U.S. According to a 2023 report published by the Pew Research Center, 42% of adults say they have used fertility treatments or personally know someone who has. This is a 9% increase from the rate in 2018.¹ Technological advancements, reduced stigma surrounding fertility, and delayed parenthood trends have contributed to the growth of fertility care usage. Although these technologies were originally developed to assist women experiencing difficulty with becoming pregnant, their market includes LGBTQ+ couples who would otherwise be unable to conceive. Fertility treatments frequently involve medications that regulate hormones and ovulation, often combined with minor surgical procedures.² The two most common fertility treatments are In vitro fertilization (IVF) and Intrauterine insemination (IUI). Major distinctions between IVF and IUI include cost and efficacy of treatment. IUI typically costs about $300 to $2,000 per cycle, based on factors such as the fertility clinic, the type of medication, and follow-up required. However, it is significantly less effective than IVF, with individuals typically needing more than one cycle to achieve conception. IVF, on the other hand, costs around $11,000 to $12,000 per cycle in the U.S., but has a higher success rate of pregnancy.³ With these exorbitant costs, insurance is not just a cost-saving measure. It is often the only way most people can afford fertility care at all. Many individuals with infertility concerns in the United States are untreated or undertreated. Nationally, only about 24% of infertility needs are met. These disparities are even more pronounced in lower-income, LGBTQ+, minority, and immigrant communities.⁴

The 2023 Pew Research Center report found that 61% of Americans believe health insurance should cover the cost of fertility treatments. However, fertility treatment insurance coverage is inconsistent across the United States. Currently, half of the states have infertility insurance coverage laws, while only 15 states require coverage of fertility treatments.⁵ Some states that do cover fertility treatments have significant restrictions before coverage begins, and LGBTQ+ couples are excluded from coverage in nearly every state.⁶ Certain definitions of infertility frame eligibility for insurance coverage around heterosexual couples. However, as LGBTQ+ couples increasingly turn to fertility treatment to build families, these outdated definitions reveal a growing need for reform that accommodates diverse pathways to parenthood.

Even once LGBTQ+ couples have built families, they are still consistently challenged by heteronormative definitions of parentage. Nonbiological parents in LGBTQ families are vulnerable to having their parental status questioned by the state, with implications in health care, legal, and educational settings, where biological ties are necessary for decision-making authority.⁷ Birth certificates are essential legal documents that provide access to medical records, enable school enrollment and insurance coverage, and establish financial support obligations and inheritance rights.⁸ Birth certificates have not just legal, but social and cultural value; they formally recognize and validate the nonbiological parent as a legitimate parent in the eyes of the state.⁹ However, these legal protections are often heteronormative, reaffirming heterosexual conceptualizations of parenthood. LGBTQ+ parents who have children through fertility treatment are further marginalized through state laws that implicitly restrict recognition of parentage by refusing to list the non-biological partner on the birth certificate.

Structural barriers for LGBTQ+ couples to accessing fertility care include insurance companies defining “infertility” to determine coverage and states defining “parenthood” for legal recognition and rights. Outdated legal definitions built around traditional, heterosexual reproduction are not just dismissing the LGBTQ community; they are directly restricting fertility treatment access.

II. Goidel v. Aetna – Infertility and Insurance

A considerable restriction on access for LGBTQ+ couples is the definition of fertility. Prior to 2023, the definition of infertility was “the failure to get pregnant within a year of having regular, unprotected intercourse or therapeutic donor insemination in women younger than 35, or within six months in women older than 35.”¹⁰ Through interpretation, LGBTQ+ couples are unable to satisfy this criteria, as it requires intercourse with a biologically male partner. This definition was recognized by the Centers for Disease Control and Prevention, the American Society of Reproductive Medicine, and other medical and legal organizations, solidifying its influence in the insurance environment.¹¹ Furthermore, while many U.S. states mandate minimum coverage of fertility care, this is typically incomplete and ranges from basic diagnostic services to full treatment coverage.¹² This complex landscape of coverage, paired with evolving definitions of infertility, creates burdensome barriers to fertility care access for LGBTQ+ couples. Because the definition of infertility before 2023 lacked a distinction for same-sex couples to qualify, insurance companies discriminately restricted access to their fertility treatment coverage.

In September 2021, National Women’s Health Center, on behalf of plaintiffs Emma Goidel and her spouse, brought a class-action lawsuit against the health insurance company, Aetna, in the Southern District of New York. The lawsuit claimed that Aetna’s coverage policy for IVF fertility treatments unfairly discriminated against LGBTQ+ couples. For heterosexual couples, Aetna immediately covered fertility treatments if they had tried and failed to get pregnant for 12 months. However, for LGBTQ+ couples, Aetna required out-of-pocket payment for 12 months prior to covering any fertility treatments. In June 2023, the parties filed a joint motion to stay the case while they discussed a settlement agreement. A final settlement agreement was reached in November 2024. In the settlement agreement, Aetna agreed to update its policies to ensure that fertility treatment coverage will be applied in a non-discriminatory manner, regardless of an individual’s sexual orientation. The settlement agreement also included damages to be paid to individuals adversely affected by the repealed policy.¹³

The class action complaint challenged whether Aetna’s policy language regarding infertility constituted discrimination on the basis of sex, including sexual orientation and/or gender identity. It argues that Aetna’s fertility treatment coverage policy discriminately denied LGBTQ+ couples from receiving equal access to IVF and IUI treatments, and thus, to having children. The coverage policy defined “infertility” as “the failure to establish a clinical pregnancy after 12 months of regular, unprotected sexual intercourse or therapeutic donor insemination” for a woman under 35 years old. For a woman 35 years or older, Aetna reduced this requirement to six months. Thus, for LGBTQ+ couples, the only way to satisfy this definition of infertility was to pay out-of-pocket for either six or 12 months of fertility treatments. For the plaintiff, this translated into tens of thousands of dollars in medical costs for six IUI and one IVF cycle. In addition to monetary costs, Goidel incurred emotional costs due to the discriminatory Aetna policy, including from two miscarriages from less successful IUI cycles she chose instead of the more successful IVF cycles that were more expensive.¹⁴

Because of Aetna’s discriminatory definition of infertility, LGBTQ+ couples faced financial and procedural barriers to accessing fertility treatments that heterosexual couples would not. The class action lawsuit suggested, for the first time, that insurance definitions can function as a form of discrimination. Eligibility definitions effectively exclude certain classes of people from receiving care, creating a structural barrier for LGBTQ+ couples seeking to start families. By conditioning access to fertility treatment coverage on heterosexual intercourse, insurers impose costs on LGBTQ+ couples that heterosexual couples are not required to bear, highlighting unequal medical access. This settlement suggested that discrimination in health insurance could not only occur through explicit denials of coverage, but also through implicit practices of limiting coverage by using discriminatory definitions of infertility. The case also emphasized legal loopholes that insurance companies use to restrict coverage. At the time, these insurance definitions of infertility were based on the medically accepted definition and were thus legally and professionally accepted. Goidel v. Aetna shifted the legal understanding of discrimination by demonstrating that insurance policy language itself can perpetuate inequalities, even without explicitly excluding LGBTQ+ couples.

Goidel v. Aetna had ramifications immediately. A survey conducted in 2023 revealed that 68% of respondents could not access fertility treatments because of infertility definitions that assumed heterosexuality, even when their employer provided specific fertility coverage.¹⁵ The same year, the American Society for Reproductive Medicine (ASRM) modified its heteronormative definition of infertility to broaden eligibility to many individuals seeking fertility treatment coverage, including LGBTQ+ couples.¹⁶ The status of infertility can now be achieved by “the inability to achieve a successful pregnancy based on a patient’s medical, sexual, and reproductive history, age, physical findings, diagnostic testing, or any combination of those factors.”¹⁷ Because many insurance plans rely on the ASRM definition to determine coverage, the modified definition has greatly expanded access to fertility treatment coverage.¹⁸ By reframing the insurance definition of infertility, the reform signals a growing moment to eliminate barriers to meaningful access to fertility treatment for the LGBTQ+ community.

III. Pavan v. Smith – Parenthood and the State

The state, as with insurance companies, manipulates definitions to restrict access to certain groups of people. By tying recognition to biology, the state legitimizes and protects heterosexual families while discrediting LGBTQ+ ones. According to the National Center for Lesbian Rights, when a married heterosexual couple has a child, both spouses are presumed to be legal parents and are automatically listed on the birth certificate. LGBTQ+ couples, by contrast, often require a donor to conceive, meaning one parent will lack a biological connection to the child. Without the possibility of presumed parenthood, the non-biological parent is especially vulnerable to changes in the political and legal landscape of parentage.¹⁹ Additionally, the non-biological parent in a same-sex couple must often take additional legal steps, such as second-parent adoption, to secure rights that heterosexual parents receive automatically. Pavan v. Smith arose out of precisely this situation.

In Arkansas in 2015, Terrah Pavan and Leigh Jacobs, both in same-sex marriages, each gave birth to a child. Terrah Pavan and her wife, Marisa, completed the birth certificate application, listing both women as parents. Similarly, Leigh Jacobs and her wife, Jana, finalized the hospital paperwork to include both wives’ names as parents. However, in both cases, the Arkansas Department of Health issued a birth certificate to each couple listing only the spouse who gave birth as the sole parent, omitting Marisa and Jana. The Pavan and Jacobs families filed a lawsuit in the Arkansas State Court against the Director of the Arkansas Department of Health. This trial court ruled that the Arkansas birth certificate law is unconstitutional, per Obergefell v. Hodges, and the Department of Health began to issue documents with both same-sex parents listed. Subsequently, the Arkansas Supreme Court overturned the trial court’s decision and the families appealed this ruling to the U.S. Supreme Court.²⁰ On June 26, 2017, the Supreme Court granted certiorari and reversed the decision of the Arkansas Supreme Court.²¹

In its decision overturning the state’s ruling, the U.S. Supreme Court held that the Arkansas rule denies married same-sex couples the right to both be listed on their children’s birth certificates, a privilege that is bestowed upon married heterosexual couples.²² The Supreme Court ruled that, per the precedent set by Obergefell v. Hodges, the differential treatment of married same-sex couples and married heterosexual couples by the documentation of parentage on Arkansas birth certificates was unconstitutionally discriminatory. By failing to denote both female partners on a birth certificate, Arkansas was depriving same-sex couples of the marriage benefits that heterosexual couples are given, including two practices that require parental documentation: making medical decisions for their child or enrolling the child in school. Arkansas law had defined parenthood as it relates to artificial insemination, but only in a heterosexual application: “when a married woman in Arkansas conceives a child by means of artificial insemination, the State will — indeed, must — list the name of her male spouse on the child’s birth certificate.” However, state law “allows Arkansas officials in those very same circumstances to omit a married woman’s female spouse from her child’s birth certificate.”²³ Because Arkansas law requires officials to list a male spouse on a birth certificate in cases when fertility treatments were used but allows them to omit a female spouse in similar situations, the statute reveals how state definitions of parenthood are structured around heterosexual reproduction.

Despite Pavan v. Smith setting an important precedent for LGBTQ+ parental recognition, the ruling was broad, allowing for possible future loopholes. The petitioners challenged the entirety of the Arkansas Code’s birth certificate method, which is rooted in biology, rather than solely the provision governing artificial insemination.²⁴ Because many state parentage laws still rely on biology to determine legal recognition, they are able to interpret statutes in ways that continue to disadvantage LGBTQ+ families. As a result, non-biological parents in same-sex couples may still need to pursue additional legal steps, such as second-parent adoption, to secure rights that heterosexual couples receive automatically. By defining legal parenthood through a biological framework, the state can limit both access to fertility care and the legal security of families formed with the help of fertility treatments.

IV. Recommendations

Many recommendations exist to expand inclusive access to fertility care for LGBTQ+ couples at both the clinical and policy levels. At the clinical level, improving awareness of institutional barriers to fertility care is essential. Fertility practices should standardize inclusive language and intake processes to ensure that all patients feel recognized and respected. Additionally, implementing diversity and inclusion training for all staff members can help reduce barriers and foster a welcoming environment for all patients. Staff training of this kind is offered through the Human Rights Campaign and Family Equality, among other nonprofit organizations.²⁵ Providers should also prioritize comprehensive patient education about fertility and infertility and collaborate with local and national agencies to connect individuals diagnosed with infertility to appropriate support services.²⁶ Clinic infrastructure should be modified to establish clear, consistent protocols for navigating insurance complications related to gender issues. Additionally, providers should standardize procedural fees to promote equitable treatment of all patients, regardless of sexual orientation.²⁷

At the policy level, the goal is to reduce the financial burden of fertility treatment in a way that promotes inclusive access for LGBTQ+ couples. Ensuring equitable access to infertility services requires expanding public funding and reviewing reimbursement criteria to align with best practices. Policies can allocate a greater proportion of the healthcare budget to addressing infertility and introduce affordability programs for patients with limited financial means to reduce access disparities. Additionally, reimbursement criteria should be broadened to reflect international medical standards, ensuring that all eligible patients can access treatment and receive an appropriate number of cycles.

Two countries have implemented particularly effective fertility coverage policies that can help structure future action within the United States. Denmark’s public health service funds the cost of three fresh IVF transfers or five started cycles for heterosexual couples, single women, and lesbian couples between the ages of 18 and 40. Although the latter two groups were excluded from the policy language prior to 2018, subsequent reforms broadened the definition to incorporate them. While the heteronormative definition of infertility remains, it does not apply to LGBTQ+ couples, who are eligible for publicly funded treatment without demonstrating prior heterosexual intercourse.²⁸ Beyond treatment coverage itself, Japan’s broader approach to reproductive policy includes other protections related to starting a family. Beginning in 2022, Japan’s public health insurance system began reimbursing 70% of most fertility treatment costs. Additionally, new legislation allows national public employees to take up to 5 days a year for paid fertility treatment leave or up to 10 days for in vitro fertilization or micro insemination that requires frequent treatment. By addressing both cost and time constraints, these measures aim to make fertility care more accessible for all patients.²⁹ The National Institute of Information and Communications, Japan’s only National Research and Development Agency, reports that Japan offers paid time off for a spouse’s delivery and pregnancy, with no gender stipulations. However, extended parental leave for all male and female employees who have adopted is unpaid.³⁰ This gap highlights how even seemingly comprehensive reproductive policy can fall short in providing true equality. The shortcomings of American policy do not exist in a vacuum — improving access to and coverage for fertility treatments is a global challenge.

Policymakers must also consider the legal protections available to LGBTQ+ families after a child is born. LGBTQ+ parents are often recommended to adopt a non-biological child, even if they are listed on their birth certificates. Both partners will then have equal legal status in terms of their relationship to the child. Adoptions provide stronger legal protection than birth certificates because they are finalized through a court proceeding, whereas a birth certificate is an administrative document completed at birth and may be subject to challenge. A final adoption order, including one involving LGBTQ+ parents, must be recognized in every state, even if the state’s laws would not have permitted the adoption itself.³¹ Even with the legal security an adoption order provides, it is unfair that LGBTQ+ parents must endure extra legal steps to secure rights automatically granted to other parents.

To move toward genuine reproductive equality, the United States must address both the financial and legal barriers that LGBTQ+ couples face when accessing fertility care. Expanding inclusive insurance coverage and expanding state legal definitions of parenthood would ensure that LGBTQ+ couples can pursue building a family as heterosexual couples can. Meaningful reform at both the clinical and policy levels will create a reproductive health system that is inclusive for all families.

V. Conclusion

Structural barriers continue to limit LGBTQ+ couples’ access to fertility care. Insurance coverage often depends on restrictive definitions of “infertility,” while legal recognition of families relies on how states define “parenthood.” Because these definitions are rooted in a traditional, heterosexual framing of reproduction, they actively restrict access to fertility treatment and create additional legal obstacles to forming families for LGBTQ+ couples. The class action lawsuit Goidel v. Aetna highlighted how insurance definitions of infertility can act as a form of discrimination by conditioning fertility coverage on heterosexual intercourse. The Supreme Court case Pavan v. Smith demonstrated how state definitions of parenthood can create unequal pathways to legal recognition and parental rights, as some states have denied LGBTQ+ couples the ability to be listed on their child’s birth certificate. This lack of equality of reproductive freedom does not exist solely in the United States, and countries with more comprehensive fertility and reproductive policies can be used as models for expanding equitable access to care. Japan and Denmark provide examples of inclusive infertility definitions and reimbursement policies that United States policymakers could draw from when designing fertility coverage systems. Overall, substantive policy and practical reform are necessary to strengthen a reproductive health system that enables LGBTQ+ couples in the United States to pursue parenthood with the same access to coverage and legal protections afforded to other families.

Edited by Annelise Dramm and Tiffany Valkova

About the Author

Shannon Damuth is a senior at Northeastern University majoring in Political Science and Economics, with minors in English and International Affairs. She is a digital writer for the Northeastern University Undergraduate Law Review, where she primarily publishes op-eds on LGBTQ+ rights and the law. Her most recent piece, Discriminatory Censorship: How the Trump Administration is Targeting LGBTQ+ Students, was inspired by the Supreme Court’s decision in Mahmoud v. Taylor.

Shannon’s legal interests include children’s justice, LGBTQ+ rights, education law, and civil rights. She previously completed a policy co-op with the Children’s Justice Unit at the Massachusetts Attorney General’s Office, as well as with the Library and Research Services team at WilmerHale LLP.

Outside of her academic and professional work, Shannon plays on the Northeastern Women’s Club Rugby team. She is an avid AMC Stubs member, having watched 138 movies in 2025, and also enjoys writing poetry and baking banana bread for friends.

How Definitions Restrict Access to Fertility Care for LGBTQ+ Couples

Abstract

I. Introduction

II. Goidel v. Aetna – Infertility and Insurance

III. Pavan v. Smith – Parenthood and the State

IV. Recommendations

V. Conclusion

About the Author

Notes from the Author

How Definitions Restrict Access to Fertility Care for LGBTQ+ Couples

Discriminatory Censorship: How the Trump Administration is Targeting LGBTQ+ Students

Cruel and Unusual Punishment: The Legal Evolution of the Death Penalty

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