Corey Briskin, a former assistant district attorney in Manhattan, and his husband Nicholas Maggipinto, filed a class-action discrimination complaint against New York City on Tuesday morning.
In the filing with the U.S. Equal Employment Opportunity Commission, the couple says the city is violating their civil rights and those of other gay men by refusing to pay for fertility services that would be covered for other employees — including those in straight relationships as well as gay or single women.
Briskin and Maggipinto first started trying to figure out how much it would cost to have a biological child in 2017, about a year after they got married.
The process would involve gathering eggs from a donor and sperm from Briskin or Maggipinto and using in vitro fertilization (IVF) to create an embryo. That embryo would then be implanted in a surrogate who would carry the child. A fertility doctor told the couple it would cost about $200,000 in all, Maggipinto said.
“The sticker shock definitely was a real thing,” Maggipinto told Gothamist last week, ahead of the filing.
The couple knew that surrogacy wouldn’t be covered by the city health plan that Briskin had as an employee of the district attorney’s office, but the plan did include benefits for IVF. However, they soon learned that the plan, administered by EmblemHealth/GHI, requires an employee seeking IVF coverage to first prove they are infertile.
For a woman with a male partner, that’s defined by the plan as failing to conceive after at least 12 months of unprotected intercourse, and for a woman without a male partner that’s defined as failing to conceive after at least 12 cycles of intrauterine insemination, a less costly option.
Briskin and Maggipinto could not meet either of these criteria.
I know I'm biased — but this is discrimination on the basis of sexual orientation.
“Now it's crystal clear in my view — I know I'm biased — but this is discrimination on the basis of sexual orientation,” said Maggipinto, who is also a lawyer.
The couple said the cost of IVF and surrogacy without health coverage has been prohibitively expensive, effectively delaying their plans to start a family. Maggipinto works for a private law firm and has a good salary — but also has considerable student loan debt, Briskin said.
In June 2021, the couple reached out to both the city’s Office of Labor Relations and an HR representative at the Manhattan District Attorney’s Office to request IVF coverage, according to the complaint. But they were again told they were not eligible.
“It's incredibly disappointing that the City of New York, which has for a long time been a leader on issues of LGBTQ equality and social justice more generally, would not even be interested in talking with someone [about how to remedy the situation],” said Peter Romer-Friedman, the attorney who filed the EEOC complaint.
These decisions were made during the de Blasio administration. Gothamist contacted the mayor’s office to see if this policy would change under Mayor Eric Adams. Last week, Adams made a point of reiterating his support for LGBTQ+ communities during a press conference denouncing Florida’s “Don’t Say Gay” legislation.
“It's also standing up and aligning ourselves with the men and women of the LGBTQ+ community and stating that we are in unison with you and your right to have self-identification, your right to live the lifestyle and live the lives that you choose to live without any form of harassment,” Adams said.
On Tuesday, a City Hall spokesperson added that the city will review the details of the complaint.
“The Adams administration proudly supports the rights of LGBTQ+ New Yorkers to access the health care they need," Jonah Allon, the mayor's deputy press secretary, said via email. "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."
Laws regulating fertility coverage fall behind the times
Under a mandate that took effect in January 2020, health plans regulated by New York State are required to provide coverage for IVF and cannot discriminate based on characteristics such as sexual orientation or gender identity.
However, as a self-insured employer that directly pays for employees’ medical costs, New York City is not subject to that mandate. Its health plan is instead subject to federal regulations.
Still, coverage for IVF has become an increasingly common benefit for self-insured employers, which also include many large companies, said Adam Okun, the northeast regional practice leader for EPIC, a national insurance brokerage and consulting firm.
“Maybe about a decade ago, it started picking up steam,” Okun said. He added that coverage for “advanced reproductive technology” is especially common in progressive states such as New York.
On average, one IVF cycle costs between $12,000 and $17,000, according to the National Conference of State Legislatures. But Okun said that many employers still see it as cost-effective to cover the procedure.
“There isn't massive utilization” because only a narrow group of employees need it, he said. And he added that it is more likely to result in a healthy, single birth than some other fertility options such as intrauterine insemination.
But Okun said it’s still tricky to provide IVF coverage to gay men.
There’s no medical billing code for providing services to a third party other than the covered individual — and that means the services aren’t tax exempt. If an employer pays for IVF and reports it, it would be categorized as a gift and the employee would have to pay taxes on it, Okun said.
But, he added, “We do have some clients who are saying, ‘We don't care,’” and offering the benefit anyway. He said one option is to reimburse the employee for IVF and then just “gross up their wages” to account for what they will pay in taxes.
Last year, the Internal Revenue Service issued guidance related to IVF coverage for gay men. It concluded that “the costs and fees related to egg donation, IVF procedures, and gestational surrogacy do not qualify as deductible medical expenses” under the tax code.
But Maggipinto and Briskin are tired of waiting for employers and federal lawmakers to catch up with the times.
“When Nicholas and I first met, we pretty quickly started talking about our interest in starting a family,” said Briskin. “And if only the city complied with the [Civil Rights] law, it would be done already. We would have school-aged children.”
This story was updated with a comment from City Hall.