Clinic Lawsuit Prompts Defense Department to Partially Reform Discriminatory IVF Policies

In August 2023, the National Organization for Women–New York City (NOW-NYC) filed a federal lawsuit against the Departments of Defense (DoD) and Veterans Affairs (VA) challenging IVF policies that discriminate against its members. NOW-NYC is represented in the suit by the Yale Law School Veterans Legal Services Clinic and Reproductive Rights and Justice Project. 

Under those policies, the agencies cover IVF only for veterans and service members in opposite-sex marriages who can provide their own gametes (sperm and eggs) and trace their infertility to a service-connected health issue. DoD’s and VA’s policies exclude NOW-NYC members who are queer, unmarried, or otherwise unable to provide their own gametes, forcing them to spend tens of thousands of their own dollars to build their families instead. These policies are arbitrary, unconstitutional, and corrosive to the dignity of thousands of service members and veterans who want to be parents, according to the lawsuit. 

In response to the NOW-NYC lawsuit, the Department of Defense recently advised the court that it has decided to end the marriage requirement and the categorical ban on the use of donor gametes for service members using TRICARE healthcare to access IVF. 

The government explained that DoD “expects to finalize and share ... a signed memorandum by the end of February 2024 that formally directs the changes and provides further details on their scope.” Meanwhile, the government informed the court that VA is reviewing its own discriminatory IVF policies but has not agreed to make any modifications. Both agencies will retain the requirement that infertility must be directly linked to a certain injury or illness, or service-connected disability. 

“This is a big win,” said Sonia Ossorio, Executive Director of NOW-NYC. “We applaud the Department of Defense for working to expand access to fertility treatments for service members. We are overjoyed for our military members who may now qualify for coverage and desperately need this care to build their family. They have put their lives on the line and on hold to serve their country and they deserve nothing less than the best medical reproductive care. But this is only the first step. We will continue to challenge DoD and VA to remove all discriminatory barriers so that each and every service member and veteran who needs this reproductive care can access it.” 

DoD’s impending change is a victory for active-duty service members who are queer, unmarried, or cannot produce gametes. But it’s not enough, according to those involved. The unaltered service-connection requirement excludes many couples — including LGBTQ+ couples who cannot conceive without IVF, or those whose IVF needs stem from injuries and disabilities DoD and VA deem not deserving of care. 

One NOW-NYC member, an active-duty service member who has been in the Army for nine years, explained: “My wife and I have spent over $30,000 trying to start a family together. We even sold our house, and we still can’t afford IVF. While the DoD’s changes bring us one step closer to building our family, we could still have trouble accessing IVF because our fertility struggles have not yet been linked to a specific military injury.” 

“Even though infertility is significantly higher within the military community than in the general population, it is not easy to meet DoD and VA’s strict criteria to show that fertility issues are directly linked to military service,” says Briana Thompson ’25, a law student intern in the Veterans Legal Services Clinic at Yale Law School and prior active-duty Air Force officer. “Service members who delay child-rearing and need IVF because of basic demands of military life, like deployments and permanent changes of station, are ineligible for care. These stringent requirements are unlawful, out of step with IVF benefits provided to other federal employees, and antithetical to the centrality of the military family to readiness.” 

NOW-NYC is continuing the litigation, including its challenge to VA’s discriminatory IVF policies and to both agencies’ retention of the injury or disability requirement. 

“Fertility services are an essential means of supporting military and veteran families, and those who devote their lives to defending our country deserve better,” said Trudel Pare ’25, law student intern in the Reproductive Rights and Justice Project at Yale Law School. 

NOW-NYC focuses on igniting change through advancing laws, promoting women in leadership, fighting for reproductive justice, and challenging discrimination and violence against people with marginalized gender identities and sexual orientations. 

The Veterans Legal Services Clinic and the Reproductive Rights and Justice Project clinic, which represent NOW-NYC, are, respectively, part of the Jerome N. Frank Legal Services Organization at Yale Law School, and Yale Law School’s Information Society Project.