Landmark Settlement: Aetna To Cover IVF Treatments For Same-Sex Couples

Featured Image: courtesy of Mara Berton and June Higginbotham

Last week, a landmark settlement set a new and much-needed standard for fertility treatment coverage by a health insurance company: a U.S. District Judge for the Northern District of California granted preliminary approval in a class action lawsuit that will require Aetna to cover fertility treatments for same-sex couples, as they would with heterosexual couples. These treatments include artificial insemination and in vitro fertilization (IVF). 

This case is the first to require a health insurer to apply this policy nationally, across all of its enrollees. An estimated 2.8 million LGBTQ members are expected to benefit, including 91,000 Californians.

The case was brought by Santa Clara County residents, Mara Berton and June Higginbotham, who had spent a lifetime dreaming of becoming parents, only to be denied the fertility treatment insurance benefits that are routinely extended to straight couples. By virtue of being lesbians, they were faced with a $45,000 out-of-pocket price tag to conceive.

Mara Berton took on the role of Plaintiff, joined by others similarly situated, in the class action lawsuit. According to the complaint, Aetna’s policy previously required enrollees to engage in six to 12 months of “unprotected heterosexual sexual intercourse” without conceiving before qualifying for fertility benefits.

Related: Three Babies, Three Parents: A Queer Family’s Journey

The lawsuit, filed in April 2023, asserted that Aetna intentionally discriminated “on the basis of sex, specifically sexual orientation and gender identity, by denying equal access to fertility treatments covered by Aetna health plans to LGBTQ plan members who want to become pregnant but cannot do so through sexual intercourse with their partner due to sexual orientation or gender identity.”

Image courtesy of Mara Berton and June Higginbotham

Technically, the lawsuit notes that LGBTQ members could obtain coverage “only after submitting proof that they have undergone six or 12 cycles (depending on age) of arduous and expensive artificial insemination treatments—the very fertility treatments for which they seek coverage—which require substantial out-of-pocket costs and take far longer than six or 12 months to complete.” Whereas, “heterosexual couples are taken at their word” (that they have engaged in the activity for six to 12 months without success).

With regard to requirements for specifics around benefits, “the settlement focuses on removing certain prerequisites related to fertility coverage (including IUI) and does not establish a new IVF benefit, which remains dependent on individual employer-sponsored plans,” Shelly Bendit, Senior Manager, Corporate Communications, CVS Health, shared with GO on behalf of Aetna.

Nonetheless, the development is a game-changer.

“We are thrilled with this victory for thousands of queer families. Our family helped us with the resources needed to bring our beautiful twin girls into the world, but we know that’s not an option for every queer couple,” Mara Berton shared with GO. “This court order ensures that queer families on Aetna plans will have access to their coverage for fertility treatments… We sincerely hope other major insurance carriers will follow Aetna’s lead.”

Related: Two Decades of Queer Parenting Visibility—A Conversation With Dana Rudolph

Under the settlement, Aetna will also pay at least $2 million in damages to California-based members who qualify. Eligible individuals must submit a claim by June 29, 2026.

Berton and the plaintiffs were represented by attorneys Liu Peterson- Fisher LLP, Altshuler Berzon LLP, and the National Women’s Law Center (NWLC).

If you believe you are in the class of individuals covered by this settlement, file a claim for compensation at www.CaliforniaInfertilitySettlement.com. If you have questions about this settlement and want to speak with Class Counsel, email LGBTQFertilityLawsuit@nwlc.org.