Five years ago, Erin and Marianne Krupa chose to start a family. They moved to Montclair, N.J., from a more conservative environment in North Carolina, and decided that Erin would carry their first child.
Erin Krupa remembered her fertility doctor looking her in the eye and promising to help her become pregnant.
But there were complications. At an appointment with her doctor in 2013, Ms. Krupa, then 33, learned that she had benign cysts on her uterus and Stage 3 endometriosis, in which the tissue that normally lines the inside of the uterus grows outside. That meant she was infertile.
Despite her doctor’s assurances that insurance would pay for fertility treatment, Ms. Krupa’s provider, Horizon Blue Cross Blue Shield, denied coverage. The company cited a state insurance mandate from 2001 that required most women under 35 — no matter their sexual orientation — to demonstrate their infertility through “two years of unprotected sexual intercourse.”
Now the Krupas, along with two other women, are suing the commissioner of the New Jersey Department of Banking and Insurance, claiming the mandate discriminates against their sexual orientation — essentially forcing infertile homosexual women to pay for costly procedures to try to become pregnant.
“These women are already going through what can be a difficult experience, and they have the added stress of affording it financially and the added insult of being treated like a second-class citizen,” said Grace Cretcher, a lawyer for the plaintiffs.
The state mandate requires most major insurance companies to cover medically necessary treatments for infertile clients. It defines infertility as the inability to impregnate another person, the inability to carry a pregnancy to live birth or the inability to conceive after one or two years of unprotected sex, depending on the woman’s age.
That language, Ms. Cretcher said, violates the constitutional rights of non-heterosexual women.
In a complaint filed last week, the plaintiffs, all lesbians trying to conceive, also sought damages for the cost of their treatments, including artificial insemination and in vitro fertilization.
Ms. Cretcher’s firm, Beranbaum Menken, is bringing the suit against Richard J. Badolato, commissioner of the Department of Banking and Insurance, who oversees the administration of all insurance-related state statutes. The agency declined to comment on the litigation.
Fifteen states, including New Jersey, require insurance companies to cover fertility treatment. California and Maryland have updated the language in their mandates to require fertility coverage regardless of sexual orientation.
“The specific wording of the New Jersey mandate is particularly egregious and one of the most specific and exclusionary,” Ms. Cretcher said.
The New Jersey Legislature has two bills that propose changing the definition of infertility to include a “determination of infertility by a physician.” Neither bill has emerged from committee.
Dr. William Ziegler, the medical director of the Reproductive Science Center of New Jersey, said the issue of insurance coverage had long weighed on the field of fertility treatment.
“I’m not sure if there was a lot of thought given to the implications of what this would cause and how many New Jerseyans it would exclude,” Dr. Ziegler said of the mandate. “It’s a double standard. It discriminates against same-sex couples because they don’t have the biological equipment to have a baby the way a heterosexual couple does.”
He said insurance played a big role in the type of treatment his patients were able to undergo. “Even though I may recommend a specific treatment, if they just can’t afford it they have to do something suboptimal, which may not get them to what they want: a healthy pregnancy,” he said.
Another plaintiff in the case, Sarah Mills, said she was worried about raising a child with debt from unsuccessful fertility treatments.
“It’s really affected me emotionally,” said Ms. Mills, 32, an elementary school teacher from Union City, N.J. “I know it puts a strain on our relationship,” she said, referring to her partner, Gloria Torres. “I am so intense about this. I just worry every day that I can’t get pregnant and about going into debt.”
Ms. Mills’s insurance company, also Horizon, denied her coverage. She used credit cards to pay for her failed cycles of artificial insemination and anticipates taking out a loan. “I don’t know if we are going to have to stop eventually because we are paying out of pocket,” she said.
Horizon said in a statement that it covered “infertility services equally, regardless of sexual orientation,” and that it interpreted the law “in a gender- and orientation-neutral manner and our coverage standard complies with federal nondiscrimination requirements.”
After Erin Krupa was denied coverage by Horizon, she appealed the claim and began paying out of pocket for artificial insemination — $6,000 for three cycles. Each was unsuccessful. Her appeal was then denied.
“There is a part of me that has always followed the rules and says this is the world we live in,” Ms. Krupa, now 36, said. “I didn’t question it at the time. I just wanted to have a family.”
The couple decided to try in vitro fertilization, which is more invasive and expensive — about $11,000 before the cost of sperm and medicine — but has a higher rate of success.
On Christmas Eve, Ms. Krupa learned she was pregnant, and the couple drove to North Carolina to celebrate the holiday and the good news with family. But the pregnancy was ectopic, a condition in which a fertilized egg implants itself outside the uterus, and had to be terminated with two doses of chemotherapy. Ms. Krupa ended up in the hospital after a complication.
After those painful events, her doctor “had a lot of ammunition,” she said, and wrote a letter to the insurance company. Horizon decided to provide coverage.
The Krupas were allowed four cycles of in vitro fertilization. After the first three were unsuccessful, they changed their strategy: They would use Erin’s embryos, but try to have Marianne carry them and have her go through the fourth cycle of in vitro fertilization.
Marianne Krupa, 34, was able to use the last of the insurance money allotted to her wife. But she miscarried twice.
“This has been emotionally and physically taxing,” Erin Krupa said, her voice wavering. “I’m also stubborn and really want this to work.”
The Krupas worry they are running out of time to conceive. Both women are now undergoing in vitro fertilization, even though the procedures are no longer covered. They have paid about $50,000 out of pocket for treatments since they first tried to start a family.
Erin Krupa hopes that the lawsuit means other women will not need to endure the financial burden they have.
“If this is what good can come out of it,” she said, “I guess I would do it all again to improve treatment for other women.”