LGBTQ, single veterans who need IVF say VA discriminates against them

A year before Ashley Sheffield left the military, she and her partner decided to try to have a child. The two women had always hoped to build a family. They were passionate about serving others, and they wanted to share that with a child.

Sheffield and her wife tried eight rounds of artificial insemination, but none worked. By the time Sheffield medically retired from the Air Force in 2021, she was 37, nearing what she suspected was the end of her fertility window. She and her wife decided to try in vitro fertilization.

The procedure can be costly, but the Department of Veterans Affairs (VA) covers IVF for veterans who have a “service-connected disability” that impacts their fertility, and Sheffield assumed she’d qualify. After nearly 20 years in the Air Force, VA had awarded her 100 percent disability, plus an additional monthly compensation for “loss of a creative or reproductive organ.”

But when Sheffield asked her physician about the treatment, the department declined to pay for it.

According to court documents filed in Boston this week, the local women veterans program manager wrote to Sheffield on Aug. 18, 2021, to explain the denial. Sheffield could not qualify, the manager wrote, if she was “in a same sex marriage or if the sperm is donated from someone other than a male spouse. I am sorry.”

Sheffield and her wife paid for the treatment themselves, but their fight is not over. This week, Sheffield sued VA on behalf of a proposed class of veterans excluded from IVF care. A second group, led by the New York City chapter of the National Organization for Women, also filed a lawsuit in federal court against VA and the Department of Defense over their IVF eligibility policies, which also prevent single or unmarried straight veterans from accessing the benefit.

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

VA began covering in vitro and adoption in 2016, in large part because it recognized that military service can leave veterans and service members with limited family building options.

Some veterans are exposed to toxic chemicals. Others suffer from combat-related injuries. Because of the widespread use of improvised explosive devices in combat zones, those who served in Iraq and Afghanistan have suffered greater rates of spinal cord and genital injuries than in past conflicts, leaving many veterans unable to conceive naturally.

Sheffield knew, when she joined the Air Force at 19, that she wanted to have kids some day. Over the next two decades, she dedicated much of her life to the military. She won numerous commendations, including the Air Force Achievement Medal, the National Defense Service Medal, the Global War on Terrorism Expeditionary Medal and the Global War on Terrorism Service Medal. During her military service, court documents allege, Sheffield was exposed often to jet fuel, which contains known carcinogens and organic compounds that can affect the human reproductive system. She was also exposed to high levels of polyfluoroalkyl and perfluoroalkyl substances, which are linked to infertility.

When she medically retired in 2021, VA determined that Sheffield was entitled to disability for service-connected “disease, injury or adhesions of ovary,” which means that her symptoms require continuous treatment. The department also granted her a special monthly compensation for the loss of a reproductive organ.

After the program manager first denied Sheffield’s claim in August 2021, court documents say, her physician’s office sent another note once again saying she did not qualify for the benefit.

“I have been in contact with this veteran several times,” her physician’s office wrote in November 2021. “I have told her that she can not [sic] receive IVF from the VA because Veterans in the same sex marriage [sic] do not qualify. I explained that the policy is a national policy and gave her information to contact her congress representatives.”

The discrimination has left Sheffield with “ongoing emotional distress,” court documents say.

That distress is one sadly familiar to other LGBTQ+ veterans, said Renee Burbank, the director of litigation for the National Veterans Legal Services Program, an Arlington, Va., nonprofit legal firm that is co-representing Sheffield.

“The right to IVF and the right to try to grow your family and have the children that you want is incredibly important and incredibly central to so many people's lives,” Burbank said. “If we don't treat all LGBTQ military members and veterans equally, they will know it and they will experience their time in the military differently and understand that they’re being treated as less than.”

Over the last decade, federal leaders have repealed discriminatory policies such as the Defense of Marriage Act (DOMA) and the Clinton-era “don’t ask, don’t tell” rule. Still, LGBTQ+ veterans say those policies continue to affect them.

Last year, a group of veterans forced out of the military because they were gay said their discharge papers prevented them from accessing health care benefits, home loans and educational support through VA.

Same-sex marriage was already legal nationwide when VA adopted its IVF policy. But the suits filed Wednesday allege that the department has discriminated against LGBTQ+ veterans because the appropriations statute for the benefit refers to a similar policy the Department of Defense adopted in 2012. That policy memo uses DOMA’s unconstitutional definition of “lawful spouse” to limit IVF services to service members in heterosexual marriages.

“Third party donations and surrogacy are not covered benefits,” the 2012 memo reads. “The benefit is designed to allow the member and spouse to become biological parents through reproductive technologies where the Active Duty injury or illness has made it impossible to conceive naturally.”

Continuing to limit the benefit is “unconstitutional,” Burbank said.

“This is not what the law allows,” she said. “VA has to treat Ms. Sheffield like any other veteran, regardless of who she is, who she loves, who she decides to marry.”

VA estimates that there are 1 million gay and lesbian American veterans. Though the percentage of those veterans who are otherwise eligible for IVF under the department’s policies is unknown, Sheffield and the nonprofit firm representing her believe others are in her same situation, so they filed the suit as a possible class action.

A second lawsuit, filed by the New York City chapter of the National Organization for Women seeks to change not only VA policy but the 2012 Defense Department policy, which prevents VA from covering the cost of IVF treatments for single and LGBTQ+ active duty service members.

The benefit is technically a workaround. Congress banned VA in 1992 from covering fertility services, but a 2016 appropriations bill empowered the department to use its existing funds to do so. Because the program is part of an appropriations bill, Congress must reauthorize funding for it each year. VA’s 2023 and 2024 budget proposals included a request to expand the program to offer IVF to single veterans as well as those in same-sex relationships and those who need sperm or embryo donations, but Congress has not approved the expansion.

VA press secretary Terrence Hayes said in a statement that his department “strongly supports” the budget proposal, because it would “fill the gap created by the legal requirements, exclusions, and limitations in VA’s current program.”

“While we cannot comment on ongoing litigation, it is one of VA’s top priorities to provide reproductive health care to all Veterans — and we continue to strongly advocate for expanded access to assistive reproductive therapies, including in-vitro fertilization,” Hayes said.

Sen. Patty Murray, (D-Wash.), who has repeatedly pushed a bill to expand coverage of IVF treatments for single and LGBTQ+ veterans, said she is glad both the Department of Defense and VA offer some fertility services, but “way too many service members and veterans” are still being denied.

“Here’s the bottom line,” Murray said. “After serving our country, every single one of our veterans should be able to get the comprehensive health care they need to achieve their dreams of building a family, and that, of course, includes LGBTQ veterans and unmarried veterans. Our veterans and service members make so many sacrifices for our country, and sacrificing their ability to start a family should never be one of them.”

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LGBTQ, single veterans who need IVF say VA discriminates against them