Each year, tens of thousands of heterosexual couples conceive via assisted reproductive technologies (ART)—a broad medical term encompassing everything from in vitro fertilization (IVF) to the use of a surrogate. No matter how it's done, the cost is high, and finding insurers to cover such procedures is challenging.
But for those LGBTQ Americans for whom biological conception would be impossible without ART, those challenges are much greater. From state to state, laws governing the availability and insurer coverage of ART often have the effect of denying LGBTQ people access altogether. And as queer Americans see more political and social acceptance, LGBTQ communities are beginning to fight for their basic right to access ART.
Guy Ringler, a reproductive endocrinologist in Los Angeles with decades of experience serving gay and lesbian patients, noted that ART demand among his queer clients has risen since the legalization of gay marriage, and continues to grow. "The profile of my patients has changed," he noted. "It used to be men in their late 40s and early 50s. Today, younger and younger men are realizing they can have babies, too."
Far from being recognized as a basic right, "right now, [ART access] is looked at like plastic surgery, as something that's optional and voluntary," said Kimberly Surrat, a Nevada-based family lawyer and fellow of the American Academy of ART Attorneys. As of 2014, only fifteen states require insurers to cover some aspect of IVF, with many only covering diagnostic procedures. Insurers may refuse to cover patients on religious grounds as well. Only a quarter of US health insurance plans currently cover some aspect of IVF, with many requiring proof of medical infertility, which lesbian women cannot provide. And some states refuse to put both parents' names on a child's birth certificate when IVF is used.
Becoming a parent through the use of a surrogate presents further challenges. According to a surrogacy law map by Creative Family Connections, a surrogacy agency and law firm, six states have statutes or legal precedents that either forbid compensated surrogacy contracts or prevent both partners in a same-sex marriage from being listed on the resultant birth certificate. Only eight provide full legal protection for the process, including birth certificates with both parents' names. In remaining states, surrogacy exists in varying degrees of legal limbo, where even if the practice is tolerated, contracts between surrogacy carriers and parents may not be enforceable. Becoming a parent through surrogacy imposes additional expenses on top of those required for IVF, to boot. If a surrogacy carrier lacks coverage for maternity services, prospective parents will have to buy additional insurance or pay her medical expenses out of pocket. And when commercial surrogacy is used, no insurance plan will cover the fee paid to the gestational carrier.
Thus far, courts have provided little relief for those seeking to broaden access to ART. As it's currently interpreted, the Constitution guarantees a right to privacy that protects reproductive choices in matters such as birth control and abortion. However, there has yet to be an unambiguous legal recognition of the right to procreate more generally. As a constitutional law exam for a course taught by Barack Obama in 1996 informed students, "the Court has left the status and scope of the 'procreation right' increasingly unsettled," and this remains true.
But LBGTQ Americans are increasingly refusing to settle for legal limbo. In an ongoing lawsuit that has attracted national attention, four lesbian women are alleging that New Jersey state law discriminates against LGBTQ parents by mandating that patients prove they are medically infertile to gain access to ART insurance coverage. Hawaii is currently considering legislation that would guarantee ART coverage (including surrogacy) for LGBTQ couples. And a landmark 2012 decision by the Inter-American Court of Human Rights may provide an precedent for those fighting for the right to access ART; by overturning Costa Rica's ban on IVF, which was based on the legal definition of embryos as persons, the Court declared "the family's right to protections entails […] facilitating, in the broadest possible terms, the development and strength of the family unit." In doing so, it ruled that ART access "is such a basic right of the American Convention [on Human Rights] that it cannot be waived even in extreme circumstances." Legally, the United States is not bound by the court's decisions. However, the court acts as the human rights protection system for the OAS, of which the United States is a member, and, as legal scholars have noted, the court's reasoning could be appealed to in similar US cases. At the very least, it shows a legal path forward for the fight for ART access.
"This is a pressing issue," said Cathy Sakimura, Family Law Director for the National Center for Lesbian Rights. "There is a huge number of people within the community who need this sort of assistance and can't afford it."
While the New Jersey case is slowly making its way through the courts, it's far from clear how it will be decided, and it will provide no relief to people in states that do not mandate coverage at all. A more ambitious legal strategy would seek to establish a right to procreation as part of the right to privacy under the fourth and fourteenth amendments. It was this right that provided the basis for Griswold v. Connecticut, which legalized birth control, Roe v. Wade, which legalized abortion, and Lawrence v. Texas, which threw out laws banning gay sex. (Obergefell v. Hodges, the gay marriage decision, appealed to both equality protection and the right to privacy.) But with the makeup of the Supreme Court changing, challenges based on the right to privacy may become more difficult.
Establishing a legal right to procreation will only become more important in coming years. If conservatives have their way, access to ART could go from being difficult to impossible. Since 2013, at least 25 states have seen efforts to redefine personhood as beginning at conception, according to Rewire, a nonprofit organization that tracks legislation related to reproductive rights, and a federal personhood bill is currently before Congress. Though these initiatives are primarily intended to restrict access to abortion, legal experts say they could have the side effect of making IVF more difficult—and maybe impossible—to obtain. This is because IVF normally requires the creation of more than one embryo during the process.
Even with current challenges, tens of thousands of LGBTQ people have become parents using ART. That number will continue to grow, and the demands for better access will not go away. Neither will the debates surrounding the right to parenthood, and what it implies—and in that fight, the future of both LGBTQ parenthood and broader social ideas about conception may soon be rewritten.
Neil McArthur is the director of the Centre for Professional and Applied Ethics at University of Manitoba, where his work focuses on sexual ethics and the philosophy of sexuality. Follow him on Twitter.