A gay couple filed a class-action charge of discrimination against New York City on Tuesday alleging that the city’s insurance policy is discriminatory because it does not cover in vitro fertilization, or IVF, for gay male couples.
Corey Briskin and Nicholas Maggipinto said they started talking about having a family nearly a decade ago, leading up to their engagement in December 2014.
“I know that neither one of us would have considered marrying the other if there was no interest in starting a family and having children,” Briskin said.
They were married in March 2016 and hoped to start building their family soon after their wedding.
The couple planned to pursue a two-part process to have children: First, they would pursue IVF, a process where an egg is combined with sperm in a lab. Then they planned to work with an agency to hire a surrogate who would carry the baby to term.
But those plans were interrupted in 2017, after Briskin took a job as an assistant district attorney at the New York County District Attorney’s Office in Manhattan, and the couple said they learned that the city’s insurance policy doesn’t provide IVF benefits for gay men.
Briskin left the position in March and is now a law clerk for a federal judge, but he is still covered under the city’s insurance plan through a federal law called COBRA, which allows employees to continue to receive insurance coverage from their former employer for up to three years if they pay the full premium.
Under the city’s policy, an individual has to be diagnosed with infertility to be eligible for coverage of IVF or other assisted reproductive technologies. The policy — like most insurance policies nationwide — defines infertility as “the inability to conceive after 12 months of unprotected intercourse” or after 12 cycles of intrauterine insemination, or IUI, over 12 months.
The policy doesn’t define “intercourse,” but the couple’s charge, filed with the Equal Employment Opportunity Commission, alleged that “the City and its insurers have interpreted it to mean intercourse between a man and a female, thereby making it impossible for Mr. Briskin and Mr. Maggipinto to satisfy the definition.”
A City Hall spokesperson said in an emailed statement that New York City Mayor Eric Adams’ administration “proudly supports the rights of LGBTQ+ New Yorkers to access the health care they need.”
“New York City has been a leader in offering IVF treatments for any city employee or dependent covered by the city’s health plan who has shown proof of infertility, and our policies treat all people covered under the program equally, regardless of gender identity or sexual orientation,” the spokesperson said. “The city will review the details of the complaint.”
Briskin said he tried to request IVF coverage despite the definition of infertility, but he was denied on two different occasions. On June 8, Briskin contacted the city’s Office of Labor Relations and a human resources representative at the New York County District Attorney’s Office to request coverage, but the Office of Labor Relations said he and Maggipinto were not eligible for those services and denied the request, according to the EEOC charge.
Then, on July 12, Briskin contacted the New York City Law Department, which represents the city in legal disputes, and requested that the counsel change the city’s IVF policy to comply with anti-discrimination laws. But that request was also denied, according to the charge.
Briskin said after those denials, he felt like he could no longer stay quiet.
“I was expected to go to work the next day and as a prosecutor, which is the job that I was doing at the time, to protect the lives and the well-being of the residents and constituents in Manhattan, and it just felt like there was a major disconnect,” Briskin said. “It’s just incredibly unfair, and there’s no good explanation for it.”
Maggipinto said he felt saddened by the city’s response and that it was “conduct that was unbecoming of a progressive city.” He added that Briskin devoted his career to public service, making far less money than he would have in the private sector, and the couple thought one of the benefits they would receive was having 95 percent of their health care costs reimbursed.
“Now we’ve asked to use them, and we’re being told we can’t because we’re two men and not a man and a woman or two women,” Maggipinto said.
The couple said without insurance coverage, IVF would cost them $70,000 to $100,000, which would make it unaffordable. They already plan to pay for surrogacy out of pocket, which, with egg donation, can cost an additional $165,000, according to documents filed with the EEOC charge.
“If we could afford it, I guarantee you we would have at least one. I imagined we’d have two children by now,” Briskin said.
Peter Romer-Friedman, an attorney with Washington, D.C.-based firm Gupta Wessler PLLC who is representing the couple, said this is the first time, that he’s aware of, that a charge like this has been filed with the EEOC, though same-sex couples have long been fighting for insurance coverage of IVF and other infertility treatments.
Romer-Friedman said it’s “odd” that the city’s policy makes an accommodation for lesbian women, by allowing them to undergo IUI for a year, but it doesn’t make an accommodation for gay men.
“So we think this is a very straightforward case,” Romer-Friedman said. “If New York City decided that they wouldn’t provide heart medication, or other types of certain health services for gay men, I think it would be very obvious that that would be discriminatory. It’s no different here. Corey and Nicholas need IVF just as much as any other infertile couples who can’t make a baby together biologically. … Yet, they are in the group — gay men — that are categorically excluded from qualifying for IVF benefits. It’s not just wrong; it’s blatant discrimination.”
By not providing coverage for gay men, “the City’s policy breathes life into the outdated stereotype that gay men are not fit to be parents,” the charge stated. The charge also argued that the city’s policy violates federal, state and city laws against discrimination.
Maggipinto said that, unlike previous generations, he and Briskin were able to get married, and they saw having children as “a foregone conclusion.”
But now their family plan has been delayed for years.
“What the city has done is robbed me of the right to determine when I get to have the family that I want to have,” Maggipinto said.
He added that he imagined being a dad in his early 30s, but he’ll be 37 next month, and they’ve just entered a legal process that could take years.
“I could be 40 before I’m a dad, and it’s sad to me, but I still want to be a dad, so that’s what keeps me going,” he said.
Briskin said the experience has “really shaken up our sensibility in terms of what our lives would look like at this point” but that they’ve received an outpouring of support that’s given them hope.
“I am hopeful, and I remain hopeful that we will be parents and that it will happen soon,” he said.