LGBTQ+ individuals face numerous hurdles in their pursuit of parenthood. For the benefit of both the parents and children, LGBTQ+ couples often desire biological parenthood, a more challenging prospect for same-sex partners. Assisted reproductive technology (“ART”) becomes a crucial avenue for LGBTQ+ parents seeking to establish genetic ties to their children. ART procedures, however, are incredibly expensive, exacerbated by the lack of widespread fertility insurance coverage. Even when available, fertility insurance often hinges on proof of “infertility,” a criterion largely defined by heteronormative standards. This definition disproportionally harms LGBTQ+ individuals because two cisgender women or two cisgender men will never be able to get pregnant from unprotected sex. Because ART services are so costly, unless they have access to insurance coverage, many LGBTQ+ individuals have no avenue to the only way for them to build biologically related families. This Note explores the inequality of fertility insurance, arguing that LGBTQ+ couples have strong claims for sex discrimination under the Equal Protection Clause and Title VII of the Civil Rights Act of 1964, especially utilizing the new precedent of Bostock’s definition of “sex.” To provide LGBTQ+ individuals with equal access to fertility insurance, this Note argues that improvements must be made through federal legislation, the Affordable Care Act (“ACA”), the Employee Retirement Income Security Act (“ERISA”), and state mandates.
* J.D. Candidate, 2024, University of Illinois College of Law; B.S., 2021, Texas A&M University. Thank you to Professor Wexler and Professor Anderson for their valuable guidance throughout the writing process. Thank you to the staff, members, and editors of the University of Illinois Law Review for their hard work and for a fantastic year. Lastly, a huge thank you to my husband, Luis, for being my biggest supporter and patiently listening to endless discussions about Law Review. The ideas presented in this Note reflect my perspective at a particular moment in time.
The full text of this Note is available to download as a PDF.