California Bill Would Redefine 'Infertility' To Give Men Access to Pregnancy Treatments

(Grabien / Marko Geber)
June 9, 2023

California lawmakers are advancing a bill that would redefine the inability of men to get pregnant as "infertility" and entitle them to insurance-covered fertility treatments.

The legislation, which passed in the Senate late last month and is about to be taken up by the Assembly, would require employer-sponsored insurance plans to cover all nonexperimental fertility treatments, including artificial insemination of pregnancy surrogates. Supporters of the legislation have touted it as an overdue step toward "fertility equality" for LGBT people.

Freshman state senator Caroline Menjivar (D.), who coauthored the bill with Assemblywoman Buffy Wicks (D.), said: "It will ensure that queer couples no longer have to pay more out of pocket to start families than non-queer families. ... This bill is critical to achieving full-lived equality for LGBTQ+ people, as well as advancing well-rounded and comprehensive health care for all Californians."

In liberal California, opposition to the bill, S.B. 729, has been mild and focused on concerns about ballooning insurance premiums. But the measure is part of a nascent campaign by LGBT rights advocates that could open a new front in the national culture war over gender.

California already requires health care insurance providers to cover fertility treatments other than in vitro fertilization for policyholders who are medically infertile. The law defines infertility based on a physician's diagnosis or according to the widely accepted definition of not being able to have a child after a year or more of trying.

The fertility insurance bill would expand the coverage mandate for employers to include IVF and expand the legal definition of infertility to include, "A person’s inability to reproduce either as an individual or with their partner without medical intervention." Infertility would no longer be defined only as a disease or medical condition but also as a "status," such as being in a gay or lesbian relationship or being single.

California business and insurance groups have objected to the bill's projected price tag for employers, even as they have been careful not to criticize its intent. According to an analysis by the California Health Benefits Review Program, the coverage mandates would raise annual premiums for employer-sponsored plans by more than $330 million a year. The California Association of Health Plans said the coverage mandates are the most expensive of 16 that the legislature is considering, which together would add about $1 billion to the premiums.

Conservative policy advocates, meanwhile, have sounded the alarm about what they see as the bill's broader social costs.

Emma Waters, a research associate at the Heritage Foundation, pointed to concerns about nontraditional families and forms of reproduction, including surrogacy and IVF.

"Under this bill, most insurance plans would be required to provide in vitro fertilization services based on someone’s relationship status or sexual orientation," Waters said. "For single men or male same-sex couples, this means they would need to access a surrogate to carry their child. So the bill is outlining what adults have the right to, but nowhere does it address the needs of the child or safety concerns regarding the child either in IVF or in gestational surrogacy."

California Family Council Capitol director Greg Burt said: "This bill seeks to further erode the father, mother, and child nuclear family and make everyone in society pay for it to further a make-believe cause named 'fertility equality.' The reason healthy singles and same-sex couples can't reproduce has nothing to do with infertility; it has to do with biology."

The authors of the bill did not respond to requests for comment.

LGBT and fertility nonprofits backing the legislation have been clear about their agenda. They seek to decouple pregnancy from biological sex and traditional conceptions of gender and family. And the groups’ ambitions extend far beyond California, which is known as a testing ground for progressive policies of the future.

One of the bill's nonprofit sponsors, Men Having Babies, describes its broader goal as "to remove financial barriers to surrogacy parenting for gay men worldwide, a cause which we refer to as Fertility Equality."

"Central to our fight for more equitable access to parenting options is what we know from our combined experiences: The anguish and yearning that same sex couples and singles feel due to their inability to reproduce without medical intervention is equal to the anguish of heterosexual couples who suffer from 'medical infertility,'" the group says on its website.

Men Having Babies—along with another S.B. 729 sponsor, LGBT powerhouse Equality California—successfully lobbied to insert key language into the bill. The groups also claim to have added LGBT-friendly wording into infertility insurance mandates in Maryland, New York, New Jersey, and Illinois. California would be the second state, following Illinois in 2021, to adopt a version of their redefinition of infertility.

"We … are part of coalitions [seeking] to pass similar bills in several additional states," including New York, New Jersey, and Maine, Men Having Babies's founder and executive director Ron Poole-Dayan said.

Men Having Babies, Equality California, and other S.B. 729 sponsors are also behind a federal bill by Reps. Adam Schiff (D., Calif.) and Judy Chu (D., Calif.) that would allow LGBT people and others to take tax deductions for medical expenses related to IVF and surrogacy. The Biden administration, meanwhile, has considered redefining infertility in the Affordable Care Act to require insurers to cover IVF and other fertility treatments for LGBT people.

"This is just one of those spaces where the way that we think about what is necessary medical care is running to catch up with our understanding of intimate relationships," Nicole Huberfeld, a professor at the Boston University School of Law and School of Public Health, told Bloomberg Law last year.