Veteran Advocates Sue over 'Discriminatory' Fertility Treatment Policies at DoD, VA

Oct 11, 2023

The National Organization for Women and two groups that represent veterans have filed lawsuits against the Department of Defense and the Department of Veterans Affairs over health care coverage for in vitro fertilization and other fertility treatments.

The DoD and VA policies violate anti-discrimination laws because they exclude single veterans, as well as same-sex and unmarried couples, according to NOW's New York City chapter, the Yale Law School Veterans Legal Services Clinic and the National Veterans Legal Services Program, which filed suits Wednesday in Manhattan and Boston.

The lawsuits challenge requirements that to access IVF treatment service members must be married, have a service-connected illness or injury, and be capable of using their own sperm and eggs to conceive a child.

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"The VA's refusal to provide IVF to [these] veterans is not merely a failure. It is blatant discrimination and bigotry," said Renee Burbank, director of litigation at the National Veterans Legal Services Program, during a press conference Wednesday in New York.

The DoD covers fertility counseling, in vitro fertilization and other assisted reproductive technologies for married service members whose infertility is tied to a military injury or related illness.

Other married troops can go to one of seven military treatment facilities that offer IVF, artificial insemination and other fertility services to receive services at cost. And they can use Tricare, the military's civilian health benefits program, for limited services such as diagnoses of conditions that cause infertility and correction of medical issues that may be the source.

Tricare does not cover IVF. And under DoD rules, the use of donor eggs or sperm is prohibited -- an exclusion that restricts same-sex couples, even those who are legally married and who have a service-connected fertility condition, from using the benefit.

At the VA, veterans have access to fertility testing, medication, artificial insemination, cryopreservation of gametes, counseling and more. Those whose infertility resulted from a service-related injury or illness also can access IVF, but that benefit is restricted to married couples able to provide their own eggs and sperm.

The VA had requested legislation in its fiscal 2024 budget to expand its coverage of advanced fertility treatments, including IVF and adoption services, to include those who are single; in a same-sex relationship; or need a donated embryo, egg or sperm.

The legislation, introduced this year by Rep. Julia Brownley, D-Calif., the ranking member on the House Veterans Affairs health subcommittee, has not been considered by the committee.

The Senate's version of the fiscal 2024 National Defense Authorization Act includes provisions that would add services such as fertility testing and intrauterine insemination, or IUI, for service members and Tricare beneficiaries.

The benefit would not be available to former troops, career retirees or those medically retired from service or their families under Tricare, and it would not cover in vitro fertilization.

The potential class-action lawsuit against the VA was filed by Air Force veteran Ashley Sheffield and her wife who have struggled to start a family, according to legal representatives.

NOW-NYC filed the lawsuit against the VA and DoD on behalf of their active-duty and veteran members.

Burbank said that military service is inherently dangerous and carries with it a risk of infertility as the result of stress, separation, environmental exposures and injury, and service members and veterans, regardless of marital status or ability to produce gametes, deserve coverage.

"Our nation makes them a solemn promise to take care of them and their families in return. Too often, we fail," Burbank said.

In a statement, veteran Lindsay Church, executive director of Minority Veterans of America and a member of NOW-NYC, wrote of an inability to carry a child as the result of "extensive damage to my ribs, sternum, spine and torso" and a lack of access to coverage because the injuries do not directly affect fertility.

"Despite my service-connected disability, I do not have access to vital fertility treatments such as IVF because my disabilities are not tied to my reproductive system and we are in a same-sex marriage," said Church, who identifies as non-binary.

Beginning next year, Federal Employee Health Benefits program insurers will be required to cover artificial insemination and related medications but not donor sperm. They also will begin covering drugs used for up to three cycles of IVF per year but stop short of covering the procedure.

Jessica Quinter, a recent graduate of Yale Law School who is involved with its Reproductive Rights and Justice Project, noted that the civilian insurance program's benefits will soon outstrip those offered by the VA and Tricare.

The lawsuits seek to represent single veterans, those in unmarried partnerships, LGBTQ+ veterans, and any veteran who suffers from infertility or otherwise cannot prove that their infertility is service-connected.

When pressed on the Department of Veterans Affairs providing health care for service-connected illnesses or injuries, Quinter said the service-connected requirement of the fertility policies is "above and beyond what is normally required for VHA benefits."

The DoD and VA's discriminatory policy violates a section of the Affordable Care Act, known as Obamacare, that prohibits discrimination on the basis of sex, she said.

The DoD declined to comment on the litigation.

VA Press Secretary Terrence Hayes said the department could not comment on ongoing litigation. But he said the VA has prioritized reproductive care for all veterans and continues to "strongly advocate for expanded access to assisted reproductive therapies, including in vitro fertilization."

Noting that the VA has "limited legal authority to provide assisted reproductive technology," Hayes referred to President Joe Biden's proposed expansion of services at the VA in the fiscal 2024 budget, which would "fill the gap created by the legal requirements, exclusions and limitations in VA's current program," Hayes wrote in a statement provided to Military.com.

"VA strongly supports this proposal," Hayes wrote.

Editor's Note: This story was updated to clarify that Lindsay Church is not a plaintiff in either lawsuit.

-- Patricia Kime can be reached at [email protected]

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