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Fertility Equality

Removing Discriminatory Financial Barriers for Surrogacy Parenting for Gay Men

Due to biological and social constraints, gay men as a category face the most barriers in their quest for parenting. Major progress has been made in removing legal barriers for surrogacy in the USA, but financial barriers prevent the majority of prospective parents from taking advantage of these legal achievements. Therefore one of MHB's primary missions is to broaden access to affordable and ethical parenting options for gay men. 

Alongside the provision of grants, and facilitation of free and discounted services to members of our community that can least afford this journey on their own, MHB is increasingly engaged in advocacy initiatives to remove financial barriers to surrogacy parenting for gay men worldwide, a cause which we refer to as Fertility Equality. 

The reality is that many of the financial barriers we face are not due to objective costs, but the result of discriminatory health insurance and taxation regulations and unfair pricing policies. MHB believes that this discrimination exists worldwide due to society's lingering perceptions of gender roles and the feeling that parenting is not as innately important to men as it is for women.

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 Inclusive Definition for “Infertility” - as proposed by MHB, RESOLVE and NCLR

In 2020, MHB joined with RESOLVE: The National Infertility Association and NCLR (the National Center for Lesbian Rights) to find ways to make IVF insurance laws more equitable. The result was a more inclusive definition of “Infertility” that includes not just reference to a medical disease or condition, but also a personal status. Below is the new definition, as included in the model legislation the organizations promote, and that was already incorporated to the 2021 IL IVF Mandate. The updated components are in blue font: 

For the purpose of this Act: 

“Infertility” means a disease, condition or status characterized by 

  1. the failure to establish a pregnancy or to carry a pregnancy to live birth after regular, unprotected sexual intercourse, or 
  2. a person’s inability to reproduce either as a single individual or with their partner without medical intervention, or 
  3. a licensed physician’s findings based on a patient’s medical, sexual and reproductive history, age, physical findings and/or diagnostic testing. 

In addition, the mode legations includes specific language in the “Coverage Provided” section meant to prevent excluding surrogacy IPs: 

A policy, contract, or certificate may not impose any exclusions, limitations, or other restrictions on coverage of fertility medications that are different from those imposed on any other prescription medications, nor may it impose any exclusions, limitations, or other restrictions on coverage of any fertility services based on a covered individual’s participation in fertility services provided by or to a third party, nor may it impose deductibles, copayments, coinsurance, benefit maximums, waiting periods, or any other limitations on coverage for the diagnosis of infertility, treatment for infertility, and standard fertility preservation services, except as provided herein, that are different from those imposed upon benefits for services not related to infertility.


MHB's Initiatives to Reduce Discriminatory Financial Barriers

  • IVF Mandates: Amend existing and proposed IVF insurance mandate laws (in states and for federal employees) with an inclusive definition of "infertility," and to allow a third party (GS / ED) to receive the services in place of the covered individual. (As is the case in live organ donation).
  • Coverage at Work: initiatives to expand the breadth and depth of surrogacy related coverage by employers - through increasing awareness, transparency, and tools for employee advocacy.
  • Tax Reform: Amending tax regulations to allow for deduction of surrogacy-related medical and legal expanses, and/or recognize them as eligible for Flexible Spending Accounts (FSA)/Health Savings Accounts (HSA).
  • Surrogate Insurance Exclusions/Liens: Eliminating exclusions and liens on maternity and delivery coverage for surrogates (either through their insurance or that of the IPs).
  • Financial Assistance: Offer more opportunities for affordable financing and charitable financial assistance.

Related News

Access to Family Building Act Looks to Ensure Access to Infertility Treatment

  • Title: 2024 Access to Family Building Act
  • Summary: This Act establishes individuals' statutory rights, including access to assisted reproductive technology, the continuation of ongoing treatments, and retention of rights over reproductive genetic materials while also granting healthcare providers the authority to perform and provide information related to assisted reproductive technology.
  • Men Having Babies supports this act that ensures access to fertility care
  • Status: In the House Energy and Commerce Committee
  • Bill ID: HR 7056
  • Action Needed: Contact your representative and members of the Energy and Commerce Committee with your support

New Bill Aims to Make Tax Code More Equitable

  • Title: 2023 Equal Access to Reproductive Care Act
  • Summary: This bill would modernize the federal tax code to allow equal deduction of qualified expenses to those using assisted reproductive treatments and surrogacy arrangements regardless of sexual orientation, gender identity, and, when applicable, ability status.
  • Men Having Babies supports this act that lowers financial barriers to family-building.
  • Status: In the House Committee on Ways and Means
  • Bill ID: HR 4391
  • Action Needed: Contact your representative and members of the Ways and Means Committee with your support.

Illinois Institutes LGBTQ+ Inclusive IVF Mandate

  • Title: INS Code- Infertility Coverage
  • Summary: This bill would mandate insurance coverage of infertility treatment that includes IVF and expands this coverage to more of Illinois.
  • Men Having Babies supports this lowering of one barrier to family building for people in need of IVF.
  • Status: PASSED and in effect
  • Bill ID: HB 3709
  • Action Needed: CELEBRATE!

Maine Mandates Inclusive LGBTQ+ Infertility Treatment and IVF

  • Title: An Act To Provide Access to Infertility Treatment
  • Summary: This bill would mandate insurance coverage of infertility treatment that includes IVF and expands IVF coverage to a larger number of Maine residents.
  • Men Having Babies supports this lowering of one barrier to family building for people in need of IVF.
  • Status: PASSED and in effect
  • Bill ID: LD 1539
  • Action Needed: CELEBRATE!

A New, More Inclusive Definition of Infertility Is Promising, But Insufficient to Help Prospective Gay Fathers

The influential American Society for Reproductive Medicine (ASRM) has issued an expanded definition for Infertility to include anyone needing medical interventions, including egg donation, in order to achieve a successful pregnancy "either as an individual or with a partner.”  As such, the new policy matches the inclusive definition Men Having Babies has been advocating for since 2020, and for the first time includes not just a reference to a "disease or condition," but also personal status. However, gay men may not benefit from the new policy without the removal of restrictions that prevent the treatment to be used by "third parties" such as gestational surrogates and donors. 

The Guardian highlights discrimination against gay men pursuing surrogacy: "We are expected to be OK with not having children"

An article by the reputable The Guardian newspaper describes "how gay parenthood through surrogacy became a battleground," including for what Men Having Babies defines as "Fertility Equality." The October 1, 2022 article features a NY gay couple fighting to make their insurers pay for fertility treatment, which presently only cover heterosexual people with demonstrated "medical infertility." The article provides the complex context of what the writer describes as "a culture war," including anti-surrogacy voices, the voices of two surrogates (including Lisa Schuster, MHB's director of programing), and MHB's positions on how surrogacy can be practiced ethically, and the importance of more equatable treatment of gay men who face discriminatory health insurance and taxation regulations and unfair pricing policies.  

New Federal Bill Could Allow Tax Deduction for Surrogacy Expenses, Remove Discrimination Against LGBTQ Tax Payers

The proposed Equal Access to Reproductive Care Act brings hope for greater equality in the IRS regulations to LGBTQ families and single parents, a goal Men Having Babies has long sought as part of the organization's advocacy for Fertility Equality. The bill, filed by Representative Schiff (D-Burbank) and Representative Chu (D-Monterey Park) will allow people to deduct assisted reproductive care, including surrogacy, as a medical expense on their tax returns, without having to demonstrate a medical/physical infertility.