A gay couple couldn’t access IVF benefits. They’re suing New York City.

A gay couple couldn’t access IVF benefits. They’re suing New York City.

New York City is denying in vitro fertilization benefits to thousands of gay male employees of the city and their partners, a class-action lawsuit filed by a same-sex married couple alleged Thursday.

Brooklyn-based couple Nicholas Maggipinto, 38, and Corey Briskin, 35, claim the city is discriminating against male same-sex couples and violating federal, state and local laws by denying them IVF insurance benefits that other city employees are able to access.

“We were disheartened to say the least when we were told that we aren’t eligible for the IVF benefit because of the way the policy is phrased,” Briskin told The Washington Post. “We are entitled to equal treatment under the law.”

The lawsuit comes at a time when IVF has been thrust into national scrutiny after the Alabama Supreme Court ruled this year that frozen embryos are children. The lawsuit also comes at a time when LGTBQ rights are at the fore of U.S. politics, with states passing legislation to pull back gender-affirming care and to restrict the mentioning of sexual orientation in public schools.

After repeatedly asking the city to let them access IVF benefits to which more than 300,000 city employees are entitled, the couple are seeking reimbursements for all those who have been denied coverage since the benefits were made available, and they’re trying to force the city to change its policy to include gay men. The case hinges on whether the city can lawfully bar same-sex male couples from accessing IVF benefits.

A spokeswoman for City Hall, Liz Garcia, told The Post on Thursday morning that they will review the lawsuit.

The administration of New York City Mayor Eric Adams “proudly supports the rights of LGBTQ+ New Yorkers to access the health care they need,” Garcia said. “The 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, regardless of gender identity or sexual orientation.”

Nicholas Maggipinto (left) and Corey Briskin have filed a class-action lawsuit against New York City for denying IVF benefits to thousands of gay male employees and their partners.

Briskin and Maggipinto had dreamed of raising children together since they began a relationship after meeting at law school in 2011. They married five years on.

“We both had a similar vision about what kind of a life we wanted,” Briskin said. “And it involved raising children together.”

They always knew that, for them, building a family would have to involve IVF and surrogacy.

For gay men and their partners, IVF is the only feasible way to conceive a child, the lawsuit says. IVF involves retrieving eggs from a patient’s ovaries, fertilizing them to create embryos and transferring embryos to the uterus.

The lawsuit alleges that the city’s policy should cover the egg retrieval and the creation of an embryo — benefits that can cost tens of thousands of dollars out of pocket that it already offers to other employees — for all couples, including gay couples. It does not allege that the city should pay for surrogacy or provide benefits for surrogates.

The city’s health-care plan has “categorically excluded gay male employees and their partners from receiving IVF benefits under the plan,” the lawsuit claims.

“It’s a real gut punch to so many of the gay men that work for the city that they are the group that needs IVF the most and they are the group that are excluded from it,” said Peter Romer-Friedman, the couple’s lawyer.

Who gets to access IVF benefits?

The couple first learned from the insurance representative for their doctor’s office that they could not receive the IVF benefits that heterosexual and same-sex female couples get because their situation did not meet the city’s definition of infertility. Then they made further inquiries on access to IVF benefits with the city’s Office of Labor Relations and a human resources employee at the district attorney’s office.

Everyone had the same answer: The couple didn’t meet the city’s definition of infertile.

According to the city’s insurance benefits policy, infertility is the inability to conceive after “12 months of unprotected intercourse” or intrauterine insemination, in which sperm is inserted directly into a uterus. The city has “interpreted it to mean intercourse between a man and a female,” the lawsuit claims.

The city’s medical definition of infertility, which Maggipinto describes as “restrictive and exclusive,” has raised questions.

“The city is discriminatory towards same-sex male couples because they cannot satisfy the definition of infertility the city is choosing to follow,” said Betsy Campbell, the chief engagement officer at Resolve: The National Infertility Association, adding that the city does not have to choose to follow New York state’s definition.

She said that the American Society for Reproductive Medicine updated its definition of infertility last year, defining it as the “need for medical intervention, including, but not limited to, the use of donor gametes or donor embryos in order to achieve a successful pregnancy either as an individual or with a partner.” ASRM said the definition is not exhaustive.

Campbell says the city may be following the definition of infertility as understood by New York state, but it is not following the spirit of the law, which seeks to be inclusive.

The law offers a provision, she said, that should have provided exceptions to Maggipinto and Briskin’s case: “Earlier evaluation and treatment may be warranted based on an individual’s medical history or physical findings.”

Moreover, then-New York Gov. Andrew M. Cuomo’s executive order in 2021 legalizing gestational surrogacy highlighted that the law should apply equally to all couples struggling to build families, Campbell said. No longer will anyone “be blocked from the joys of starting a family and raising children simply because of who they are,” Cuomo had said.

None of this has helped Maggipinto and Briskin so far.

“You still have government entities deciding who can and can’t have children,” Maggipinto said, adding that even adoption is much harder for same-sex male couples than other couples. “When you base decisions like that on nothing other than sexual orientation, then gay men are being made to look like we can’t be good parents.”

A long journey

When Briskin joined the Manhattan district attorney’s office in 2017, the couple began planning for IVF under the city’s insurance plan. He is still under that plan through COBRA, a continuation of health coverage, even though he has since left the job.

After writing to the city’s Office of Labor Relations in 2021 and learning that they are categorically barred from IVF benefits, the couple filed a complaint with the U.S. Equal Employment Opportunity Commission in 2022.

The class-action discrimination complaint against the City of New York claimed that the city’s denial of IVF benefits to the couple and other gay male employees “constitutes unlawful sex and sexual orientation discrimination.” The couple alleged that the city government violated their civil rights by refusing to pay for fertility services that were covered for women and cisgender couples.

At the time, in a statement similar to Thursday’s statement, a spokesperson for City Hall told The Post: “Our policies treat all people under the program equally, regardless of gender identity or sexual orientation.”

The statement left the couple confused, they said.

“The city has the right talking points and the intention seems to be good,” Briskin said. “But the policy that the city espouses and offers to its employees just don’t reflect that sentiment at all.”

In March — almost two years after the complaint was filed — the EEOC granted the couple the right to institute a civil action against the city because the commission had begun an investigation but had not yet reached a conclusion.

The process has taken longer than either Briskin or Maggipinto expected. They said they wanted to start a family seven years ago.

While waiting for the city to grant them access to benefits, they have paid for egg retrieval and fertilization services out of pocket, which has set them back to pay for the surrogacy part of the pregnancy.

Although the couple is hopeful that the lawsuit will take them a step closer to the outcome they have been waiting for, they said that the journey has had many disappointments.

“I made many sacrifices, including my energy and my earning potential, while serving as a prosecutor in the public sector,” Briskin said. “All that to be told that me building a family doesn’t matter to the city in the same way as other employees building a family matters to them.”