The update to fertility treatment laws was fast-tracked by Gov. Andrew Cuomo. “No New Yorker should be denied the opportunity to become a parent, nor the joys of raising a child, because of their sexual orientation,” said Gov. Cuomo in a press release. New York law was updated in January 2020 to include anti-discrimination language to ensure LGBTQ+ people had equal access to fertility care, among other provisions. But insurers continued to enforce unequal practices.
“The LGBTQ+ community should have had access based on this new law. But apparently, insurers were making these patients go through many steps before they could actually get to the treatment that’s needed,” says Betsy Campbell, chief engagement officer at RESOLVE: The National Infertility Association. Insurers were forcing same-sex couples to pay out of pocket to undergo 6 to 12 months of fertility treatments such as testing and intrauterine donor insemination before they are considered infertile. “We certainly applaud Gov. Cuomo for addressing some loopholes that insurers probably found and clarifying that the intent is, that these couples should be able to access treatment and not be delayed and have to go through excessive steps before getting the treatment that is medically necessary,” she says.
Updated surrogacy laws have made commercial surrogacy legal in New York State. It also now recognizes un-compensated surrogacy agreements, which were previously unrecognized thus risky.
“New York’s surrogacy law was one of the worst on the books, surprisingly,” says Campbell. “I mean, they had an outright ban on compensated surrogacy agreements that wouldn’t recognize any surrogacy agreement. New Yorkers, both people in the LGBTQ+ community, as well as others who are facing infertility or other challenges, would actually have to go out of state for a surrogacy arrangement.”
This surrogacy ban has been on the books since the case of Baby M in 1986, in which a family paid a surrogate to be inseminated with the husband’s sperm, and when the baby was born the surrogate changed her mind and decided to forgo the money and keep the baby. Courts eventually gave custody of the baby to the family.
“So much has changed in that period of time that it only makes sense that laws should be updated,” says Campbell.”[The ban] in many ways, was an overreaction to a very sad story.”
Though surrogacy and fertility treatment remain expensive, removing the costs and logistical planning of travel from surrogacy, and barring unnecessary up-front costs of fertility treatments makes the services a bit more accessible.
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