CLEVELAND (WJW) — A married same-sex couple from Akron are suing their insurers, claiming they were denied coverage for the in vitro fertilization they need to conceive a child, though that procedure would be covered for heterosexual couples.

Natalie Altizer and her spouse “just want to start a family,” reads a news release from their attorney Mark Herron of Lyndhurst.

But IVF and related services could cost them more than $100,000 out of pocket, according to the couple’s federal discrimination suit filed earlier this month against Atizer’s employer, the Summit County Board of Developmental Disabilities, and others. They claim they’re being denied insurance coverage on the basis of sex, which is a violation the Affordable Care Act.

That health care law was enacted in 2010 under President Barack Obama’s administration. But legal analysts told FOX 8 its definition of sex discrimination changed after President Donald Trump took office. It could change again amid new federal rulemaking proposed by President Joe Biden’s administration that’s now underway.

Self-donor vs. ‘other’ donor

Altizer and her spouse are insured through the Stark County Schools Council of Governments, a large consortium of governmental agencies like the Summit County board and other public entities like schools and libraries. The council contracts with Medical Mutual of Ohio and AultCare Insurance Company to manage the workers’ self-funded plan.

That plan covers infertility services like hormone shots and surgery, but only covers in vitro fertilization if the donated sperm is from the insured person’s spouse — called a “self-donor” — rather than by an outside or “other” donor, according to a copy of the council’s benefits plan included with the couple’s complaint.

Since Altizer’s spouse is a woman, she needs sperm from someone other than her spouse to conceive, and that isn’t covered under her plan, Herron said.

“If Natalie was married to a man, we wouldn’t be having this issue,” he told FOX 8. “The policy language is intended to discriminate against LGBTQ same-sex couples.”

At the heart of the lawsuit is the question: Does the council’s policy unfairly exclude a same-sex couple in a way that a heterosexual couple wouldn’t be?

“If it excludes coverage any time the donor is not a spouse, that’s not necessarily discriminatory,” said Sharona Hoffman, a professor of law and bioethics at Case Western Reserve, who reviewed the case at FOX 8’s request. “There are a lot of cases where, in a heterosexual couple, the husband does not have sperm.”

Hoffman said she thinks many insurance policies don’t cover IVF, largely because it’s expensive and has a low success rate — and those that do “try to restrict it.”

“Insurers are not eager to pay for it,” she said.

In such discrimination suits, a plaintiff may need to prove why IVF is necessary in their case, and explain why they didn’t opt for a cheaper procedure, like artificial insemination using sperm donated to a sperm bank, Hoffman said.

There’s also the potential impact on the other beneficiaries in the insurance group to consider, she said.

“When an insurer pays for very expensive treatment, that affects everyone in that group because they’re probably going to raise rates,” she said. “There are all sorts of hidden consequences for other people as well.”

A spokesperson for the Summit County Board of Developmental Disabilities sent the following statement to FOX 8:

“Summit DD is one of more than 150 government entities that are members of the Stark County Council of Governments. The Agency joined the consortium to provide comprehensive, affordable health care benefits to all employees, while remaining fiscally responsible to the taxpayers of Summit County. This lawsuit is in the early stages, where Summit DD is one of several named defendants, and we will not comment further except to reiterate our commitment to provide affordable healthcare to all employees, their spouses, and dependents. Summit DD’s mission is to break down barriers of discrimination for individuals with disabilities who represent the diversity of the greater community. We do no less for our employees.”

Summit County Board of Developmental Disabilities

A spokesperson for Medical Mutual of Ohio declined to comment on the suit to FOX 8, since it is in active litigation. FOX 8 also reached out to the Canton-based AultCare for a response.

Creating a family ‘is a fundamental right’

What’s unclear in the Summit County case is whether state law comes into play, since the ACA’s anti-discrimination rule only applies to programs getting federal assistance, said Hoffman. Ohio law also doesn’t specifically protect against this kind of discrimination.

Herron’s suit argues Altizer’s employer, insurance group and insurers all receive federal assistance — so they would fall under ACA rules.

The suit also alleges Altizer’s policy violates the 14th Amendment, which protects citizens’ rights, and that “the right to bear children and create a family is a fundamental right,” Herron’s suit reads.

For insurance purposes, infertility is defined at the federal level as the inability to conceive after at least one year of unprotected sex — but since cisgender, same-sex couples can’t conceive naturally, that definition doesn’t directly apply.

Ohio law doesn’t specifically define infertility in a way that could impact Altizer’s claim. But it is one of more than a dozen states that require insurers to cover “basic health services,” including infertility treatments, according to the National Conference of State Legislatures.

Back in Ohio’s Northern District Court, records show Medical Mutual and the Stark County consortium have been served with Altizer’s complaint. No court dates have been set, and none of the defendant agencies have filed a response.

“Natalie and her spouse just want to start a family,” Herron wrote. “Her governmental employer and the insurance companies that they contract with to administer her health insurance policy should not be standing in the way.”

Insurance rules have changed

Altizer’s claim points to Section 1557 of the Affordable Care Act, which “prohibits discrimination on the basis of race, color, national origin, sex, age, or disability” in federally funded health programs. That includes sexual orientation. But the legal interpretation of sex discrimination has changed over the past two presidential administrations, Hoffman said.

In 2020, the Trump administration changed the regulations to remove an Obama-era rule keeping insurers from varying benefits in a way that discriminates against certain groups, like LGBTQ folks, according to the Kaiser Family Foundation.

A new federal rule change proposed by the Biden administration would revise the ACA’s nondiscrimination regulations to include sexual orientation, aligning it with a 2020 U.S. Supreme Court ruling on employer discrimination against homosexual or transgender workers.

The proposed rulemaking is currently up for public comment until Oct. 3.

The Summit County suit is now among a growing number of legal contests surrounding the coverage discrimination issue since the Trump-era rule change. Herron said he modeled his suit after a recent case in New York City.

In April, attorneys for Corey Briskin and Nicholas Maggipinto, a same-sex married couple receiving employee benefits from the city, filed a class-action complaint against the city to the Equal Employment Opportunity Commission.

The couple was looking forward to starting a family, but they allege the city categorically denies insurance coverage for IVF to gay male couples, though it grants that coverage to straight and gay cisgender women.

New York City’s benefits policy is different from the Summit County case in that its IVF coverage is only granted for women deemed to be infertile, and “infertility” is defined in such a way that precludes men who are homosexual, according to a news release from the couples’ attorneys.

Briskin, a former prosecutor in Manhattan, said the city’s policy “is based on an archaic idea of what kinds of people should be biological parents — one that’s inconsistent with modern values and how our society understands equality in 2022.”