A women’s organization representing troops and veterans and a former Air Force service member filed lawsuits Wednesday against the Pentagon and Department of Veterans Affairs over restrictive fertility assistance policies, arguing they discriminate against single people and same-sex couples. (Jaimee Freeman/U.S. Air Force)

A women’s organization representing troops and veterans and a former Air Force service member filed lawsuits Wednesday against the Pentagon and Department of Veterans Affairs over restrictive fertility assistance policies, arguing they discriminate against single people and same-sex couples.

The two federal lawsuits filed by the New York City chapter of the National Organization for Women, or NOW-NYC, and veteran Ashley Sheffield challenge the legality of limiting health care coverage for in vitro fertilization, or IVF, treatments to married couples who can use their own sperm and eggs and have a proven service-connected health issue that affects fertility.

“We are seeking to eliminate discriminatory conditions from the military IVF policies so that no service member or veteran is denied the care they need to start a family solely because of who they love, their choice of whether or not to marry or the precise source of their family fertility challenges,” said Sonia Ossorio, president of NOW-NYC. “They serve our country, they deserve better.”

IVF is considered the most effective form of reproductive assistance and can cost tens of thousands of dollars without insurance.

The Defense Department has been providing coverage for IVF treatments through the Tricare health care system for about a decade, and Congress authorized the VA to follow suit in 2017. Both policies strictly limit eligibility, contrasting with IVF services afforded to other federal employees that do not discriminate by sexual orientation or marital status, according to the NOW-NYC suit.

“IVF is the only fertility treatment that the VA restricts coverage for in this way,” said Yael Caplan of the Yale Law School Veterans Legal Services Clinic, which helped file the lawsuit. “Beginning next year, other health care plans for federal employees, except for active-duty service members, will be required to cover IVF drugs without comparable eligibility restrictions.”

Research indicates service members and veterans experience infertility at higher rates than civilians. A 2018 study by the Service Women’s Action Network found 37% of female active-duty troops struggled with infertility, a rate three times the national average. About 30% of female veteran respondents said they had trouble conceiving or carrying a baby to term.

The pervasiveness of the problem is linked to a variety of factors, including combat-related injuries, exposure to toxins that damage fertility, sexual assault in the military, and frequent moves and demands of life in the service that force many service members to delay marriage and parenthood.

Sonia Ossorio, president of the New York City chapter of the National Organization for Women, announces federal lawsuits against the Pentagon and Department of Veterans Affairs during a news conference in New York on Wednesday, Aug. 2, 2023. (Leah Fessler of the Yale Law School Veterans Legal Services Clinic)

To access IVF services, service members and veterans must have documentation proving their infertility was caused by a service-related illness or injury. The NOW-NYC lawsuit argues this requirement unlawfully excludes women who suffer from unrecognized conditions that impact fertility, such as damage caused by ill-fitting combat gear designed for male bodies, trauma from sexual assault and post-traumatic stress disorder.

Perhaps most egregiously, the IVF policies of the Pentagon and the VA leave out service members and veterans who are unmarried as well as about 6% of service members who identify as lesbian, gay or bisexual, the lawsuit alleges. About 48% of active-duty troops and 37% of veterans are single.

A spokesperson for the Defense Department said it would be inappropriate to comment on ongoing litigation. Terrence Hayes, the VA’s press secretary, said the White House’s budget proposal for fiscal 2024 included expanded access to IVF for veterans but was left out of legislation negotiated with Republicans to raise the debt limit in exchange for spending cuts.

“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,” Hayes said in a statement, noting the VA has no restrictions on fertility assessments and counseling, hormone therapies, fertility medications, artificial insemination, egg freezing, sperm cryopreservation and other fertility services.

NOW-NYC said several of its members have been harmed by discriminatory IVF coverage.

One active-duty service member unsuccessfully tried several rounds of another fertility treatment with her wife before deciding they needed to pursue IVF for the best chance to start a family. The treatment will not be covered by Tricare, however, because the couple is same-sex and needs donor sperm to conceive. The Defense Department prohibits the use of gametes from third parties.

Another member, a Marine veteran, was deemed ineligible for IVF coverage because she is not married to her long-term male partner and lacked a confirmed service connection for her infertility diagnosis, according to the claim. She had attempted various fertility treatments for more than five years.

“The military preaches the importance of families in our mission but when the time comes for some of us to build our own, we are told we don’t qualify,” a NOW-NYC member in the service said in a statement. “Discriminatory requirements should not hold us back from building the families we have suffered so much to have.”

Last month, the women’s organization wrote to the Justice Department requesting the Defense Department and VA immediately suspend enforcement of their IVF policies. A senior Justice Department official acknowledged receiving the request but there has not been a substantive response from the Pentagon or the VA, according to the NOW-NYC lawsuit.

The separate lawsuit filed by Sheffield, the Air Force veteran, alleges the VA denied her IVF coverage because she is married to a woman. Sheffield said injuries that she suffered in service led to health conditions that have affected her fertility.

“Like so many LGBTQ+ veterans, I honorably served in the armed forces, and I earned the health benefits that millions of veterans enjoy. I’m shocked and disappointed that the VA is denying me and other veterans IVF benefits because we’re in same-sex marriages,” Sheffield said in a statement. “We are entitled to equal treatment, and we should no longer be treated as second-class citizens.”