Department of Defense, VA sued by New York women's rights group over fertility treatment policies

A New York City chapter of a women’s rights organization is suing the Defense Department and the Department of Veterans Affairs over policies that they say effectively bar many same-sex veterans and military members from accessing certain fertility treatments needed to start families.

The New York City chapter of the National Organization for Women filed a federal lawsuit Wednesday to halt the department’s policies that they say also make it harder for single women and others to get costly in vitro fertilization. A similar federal lawsuit was filed Wednesday in a federal court in Boston, the organization said.

The lawsuit from NOW-NYC argues that criteria for service members and veterans to get the treatment — like requiring them to be legally married and produce sperm and eggs — is discriminatory and a constitutional violation.

Additionally, active-duty members who want to use IVF through the military must have a severe or serious illness, and only veterans with diagnosed service-connected infertility can receive IVF through the Veterans Health Administration.

These policies limit accessibility for same-sex couples who might want to use donor eggs and single people, advocates and lawyers say.

NOW-NYC executive director Sonia Ossorio said that the policy is shocking, given that the Supreme Court ruled in 2015 that the Constitution gives gay couples the right to marry.

“Yet, the Department of Defense and the VA aren’t honoring our service members in same-sex marriages who have fought for our country and their health care needs,” said Ossorio. “Or, the fact that many of them put off starting families to serve our country.”

A Defense Department spokesperson declined to comment, saying it “would be inappropriate to comment on ongoing litigation.”

VA Press Secretary Terrence Hayes would not comment on the litigation but added in an email that it's among "VA’s top priorities to provide reproductive health care to all Veterans.”

Hayes said the VA has limited legal authority to provide in vitro fertilization and other assisted reproductive technology. However, he said, President Biden’s fiscal year budget submission for 2024 included a proposal to expand access to fertility treatment, including IVF and adoption reimbursement to single veterans and those in same-sex relationships, he said. 

“Despite these legal limitations, all enrolled Veterans can access a wide-range of reproductive health care at VA — and we encourage Veterans to come to us for their reproductive care,” he said in a statement.

In the meantime, the NOW-NYC lawsuit paints a picture of many single women and same-sex couples being excluded from getting IVF treatment and conceiving a child.

“Tragically,” the lawsuit read, “infertility is pervasive within the military community, leaving thousands of veterans and service members struggling to build their families.”

Military service exposes, the suit says, exposes many service members to risks that can cause infertility, including head and spinal injuries. They may also see disruptions to cervical cancer screenings and other important treatments, which can increase their risk of infertility. Moreover, sexual assault or harassment can lead to psychological effects, affecting infertility, the suit says.

Yael Caplan, a member of the Yale Law School Veterans Legal Services Clinic, one organization representing NOW-NYC, said the causes of infertility are often difficult to ascertain. Even then, she said, many people lack clear documentation connecting their infertility to their military service.

“We urge DOD and VA to promptly cease enforcement of the discriminatory components of their IVF coverage policies to remedy these harms and ensure service members and veterans are given the fair and equal treatment they deserve,” she said.

By Tiffany Cusaac-Smith

tiffany.cusaac-smith@newsday.com@T_Cusaac

Education: Howard University 

Tiffany Cusaac-Smith came to Newsday in 2023 after being a race and history reporter at USA TODAY, where she wrote enterprise and spot articles examining how the past shapes the present. Previously, she worked as the race and justice reporter at the USA TODAY Network of New York, covering issues such as criminal justice reform, housing, environmental justice, health care and politics. At The Journal News/lohud.com in Westchester County, she covered Yonkers, the state's third-largest city. She also worked at The Associated Press in Atlanta.

Honors and Awards: Criminal justice reporting fellowship with the National Press Foundation;  New York News Publishers Association award for distinguished investigative reporting;  Contributed reporting for Best of Gannett honor; Member of Table Stakes, a program funded by the Knight-Lenfest Local News Transformation Fund and managed by the American Press Institute to transform local news.