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Attorney General says fertility law for same-sex couples may discriminate against straight ones

Maryland Attorney General Brian Frosh sent a letter to Gov. Larry Hogan warning a new law aimed at ending discrimination against lesbian couples seeking advanced fertility treatment in the state could "inadvertently" discriminate against straight couples seeking similar treatments.
Maryland Attorney General Brian Frosh sent a letter to Gov. Larry Hogan warning a new law aimed at ending discrimination against lesbian couples seeking advanced fertility treatment in the state could "inadvertently" discriminate against straight couples seeking similar treatments. (Photo by Amy Davis)

A law passed this session to end discrimination against lesbian couples seeking advanced fertility treatments in Maryland may have "inadvertently" introduced discrimination against straight couples, according to Maryland Attorney General Brian Frosh.

The law, passed in Annapolis last month and awaiting Gov. Larry Hogan's signature, requires state-regulated insurers to provide lesbian couples coverage for in vitro fertilization treatments as they already do for straight couples under a 2000 mandate.

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In a letter Frosh wrote to Gov. Larry Hogan on Tuesday, he warned the new law may violate the federal Affordable Care Act's restriction against differential treatment based on sexual orientation by allowing lesbian couples to use donor sperm for in vitro fertilization procedures, while leaving in place a requirement that straight couples use only the husband's sperm.

"While this change was necessary to alleviate the discrimination against women in same sex couples, it created an inequality between these same sex couples, who can now qualify for the benefit if they meet the other requirements, and opposite sex couples in which the husband is unable to produce sperm, who cannot qualify for the benefit," Frosh wrote in the letter, which was obtained by The Baltimore Sun. "In short, in fixing one source of differential treatment on the basis of sexual orientation, the bill inadvertently created another."

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Frosh, in his letter to Hogan, said whether the bill violates the ACA would "be a matter of first impression, and it is not clear how a court would rule."

For that reason, Frosh wrote, "it may be desirable for the General Assembly to address this disparity in legislation next session."

Doug Mayer, a spokesman for Hogan, said the governor "is reviewing the legislation and will make a decision on it in the near future."

David Nitkin, a spokesman for Frosh, said the attorney general would not comment on the matter beyond the letter.

The letter was not the first time the criticism has been raised.

During the legislative process, Sen. Bryan W. Simonaire, an Anne Arundel County Republican, argued the bill treated same-sex and straight couples differently based on the sperm donor disparity.

"I made that very clear on the floor. There was no question about it when we took the vote, so I don't think this comes as a surprise. It was just the will of the body to move forward with that discrimination in it," he said.

Simonaire called Frosh's letter "vindication" of his concerns on Wednesday, and said the bill should be vetoed rather than revisited.

"Discrimination is discrimination," he said. "With what other bill do we say, 'We realize it's discrimination, but we're going to wait a year to fix it'?"

Sen. Cheryl Kagan, a Montgomery County Democrat and one of the bill's lead sponsors, said the bill's supporters are "certainly not looking to disadvantage anyone," and are already considering ways to address Frosh's concerns next session.

Kagan said couples affected by the disparity Frosh raised represent a very small number of people in Maryland, but deserve "fertility parity" in the state's laws just as much as lesbian couples. The bill as it exists is a step in the right direction and should be signed by Hogan, she said, but can be improved.

"Even if it's one couple, it's not fair for one couple," Kagan said. "If our goal is to provide equity, I feel an obligation to make sure that all infertile couples get the opportunity to get fertility coverage."

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Advocacy organizations for the lesbian, gay, bisexual and transgender community in Maryland claimed the passage of the bill as a major victory of the session.

Carrie Evans, executive director of Equality Maryland, the state's largest LGBT advocacy organization, said the group agrees with Frosh that the legislature should consider legislation to address the issue next session.

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