When a straight couple tries to have kids, the woman’s body is the first place our society looks if something goes wrong. This tired and inaccurate trope means women are routinely and unfairly burdened by their fertility, while straight men know little about their own—often until it’s too late. It also spells fallout for another group entirely: gay men.

Logistically speaking, gay men who want to have biological children will always need an egg donor, in vitro fertilization (IVF), and a surrogate. In other words, regardless of the health of their own sperm, they’ll need fertility assistance. But because preconceived ideas about who needs help having kids have influenced insurance coverage for treatments like IVF, more often than not, gay men are excluded. Meaning it’s up to them to pay the sticker price.

This is why reproductive medicine and LGBTQIA+ activists have been pushing to expand what “infertile” means. “Gay men are ‘infertile’ because they literally need IVF in the same way that anyone who can’t produce a viable pregnancy does,” says Peter Romer-Friedman, an attorney who has represented gay men suing for IVF insurance coverage. Adds Ron Poole-Dayan, the executive director and founder of Men Having Babies, a nonprofit that offers workshops, seminars, and online resources for gay men looking to have children: “If you ask someone to draw a picture of infertility, they’ll probably show you a sad woman or maybe a sad woman and a supportive husband. They’re not thinking of us.”

In 2023, the American Society for Reproductive Medicine (ASRM) updated its definition of “infertile” to apply to people—including gay men and lesbians—who can’t achieve a pregnancy due to their sexuality. ASRM’s policies aren’t law, but the hope is that health insurance and employer benefit plans will follow suit, unlocking coverage for many in need. Though by all accounts, progress has been slow, says Danielle Melfi, CEO of RESOLVE: The National Infertility & Family Building Association.

“Outdated policies are still designed without LGBTQIA+ parents in mind—from insurance definitions that exclude them to inconsistent adoption and surrogacy laws across states,” she notes. “Right now too many are still dealing with extra legal and financial hurdles just to build their families.”

In Arkansas, for example, IVF coverage mandates state that a “patient’s eggs must be fertilized with her spouse’s sperm,” (emphasis mine to show the patriarchy at work). Other times, it’s less clear, like in the case of Maryland’s guidelines, which say patients or same-sex spouses can receive IVF coverage after “three attempts of artificial insemination over the course of one year failing to result in pregnancy.” Because men can’t be inseminated, insurance companies can decline coverage to gay men while approving it for lesbian women.

In 2022, Corey Briskin, then an assistant district attorney for the city of New York, and his husband, Nicholas Maggipinto, attempted to get insurance coverage for the IVF treatment a surrogate would need to carry their future child. Since New York City's definition of infertility didn't include gay men at the time, the couple was denied—prompting them to file a complaint with the U.S. Equal Employment Opportunity Commission.

Then, in 2024, Briskin and Maggipinto filed a class-action lawsuit against New York City and several city leaders, alleging that the city’s definition of “infertility” discriminates against gay men, according to state and federal laws like Title VII, which prevents discrimination based on gender identity or sexual orientation.

“The benefit at issue isn’t just a medical procedure; it’s a policy that helps employees grow their families,” says Romer-Friedman, who is also the couple’s lawyer. If New York City is going to provide that benefit to anyone, it should provide it to everyone, he adds. “It’s a choice for gay men to have a biological child, but they should be able to make that choice the same as anyone else.”

If the ruling goes in Briskin and Maggipinto’s favor, it could set a precedent that enables gay men across the country to enjoy the same infertility coverage benefits many women and straight couples do, says Romer-Friedman.

A precedent like that would have helped Kyle and Jas Jordan from Houston, Texas. Though the two are now proud dads of twins, the laws (or lack thereof) largely determined how they went about finding an egg donor and surrogate and how they funded IVF.

Because they’re a gay couple, IVF coverage wasn’t an option under their insurance; instead, they paid six figures for surrogacy services in Mexico, medical bills, and infertility treatments. In the end, says Jas, it was all worth it: “Anytime that they smile at me, it’s like, Wow, these babies are ours.”

Still, if their insurance company’s policy had been more inclusive, the Jordans believe they could have conceived their children stateside by temporarily adding a surrogate to their insurance plan at a much lower cost.

While we wait for the outcome of Briskin and Maggipinto’s lawsuit, it’s nice to know that at least some progress is being made. Since ASRM updated its definition of “infertile,” several insurance companies and employers have adjusted their coverage to be more inclusive, says ASRM chief advocacy and policy officer Sean Tipton. And in California, a new IVF mandate that passed last summer uses a definition similar to ASRM’s. (Other countries have gone further: Earlier this year, Australia expanded its national definition of “infertile” to include same-sex couples.)

“These days, nobody says, ‘I’m gay; I’m never going to have children,’” says Poole-Dayan. “But [they do say], ‘I’m not wealthy enough. I’m never going to have children.’ That’s horrible. We want to change that.”