In what may be considered more of a constitutional or even insurance law issue, rather than a family law issue two lesbian couples have filed a federal civil rights suit challenging the constitutionality of the New Jersey law that requires insurance companies to offer fertility treatment to heterosexual women, but not to those in same-sex relationships.  As stated, while not strictly a family law issue, the issue is important enough and impacts same-sex couples enough that I certainly thought it was worth blogging about.  And it also highlights that although same-sex couples may have the right to marry, they still do not enjoy all of the same rights as heterosexual couples. 

The 2015 United States Supreme Court decision of Obergefell v. Hodges held that same-sex couples' right to marry is guaranteed by the due process clause of the Fourteenth Amendment.  However, according to the New Jersey law requiring insurance companies to offer fertility treatment to heterosexual couples, but not same-sex couples, the right to procreate is not protected by the due process clause.

New Jersey law requires insurance plans in the state to cover medically necessary expenses related to the diagnosis and treatment of fertility.  If a heterosexual couple is determined to be infertile, the New Jersey law requires insurance companies to cover fertility treatment.  The law, however, defines infertility as a disease or condition resulting in abnormal function of the reproductive system, such that a person is not able to conceive after two years of unprotected intercourse if the female partner is under 35 years of age, or one year of unprotected intercourse if the female partner is 35 years of age or older or one of the partners is considered medically sterile.  N.J.S.A. 17B:27-46.1.  The law does not offer any alternative definition or protections for same-sex couples. 

The lawsuit that was filed by the two lesbian couples gives specific examples of the emotional and financial impact of trying to pay for fertility treatments, which is a situation that a heterosexual couple would not have to face.  Certainly, based on the complaint, the limitations of the law have greatly impacted the couples. 

Both California and Maryland already require insurance companies to offer such fertility benefits without regard to sexual orientation.  Is New Jersey next?  I look forward to updating this issue as the lawsuit progresses.