Maryland Attorney General Brian Frosh this week said a bill that would ensure lesbian couples have equal access to fertility treatments may subject heterosexual couples to discrimination.
Frosh in a letter he sent to Gov. Larry Hogan on Tuesday wrote that Senate Bill 416 and House Bill 838 may violate the Affordable Care Act, which prohibits health insurance plans covered within it from discriminating based on sexual orientation.
Frosh noted to Hogan the measure altered the “requirement that a spouse’s sperm be used for the in vitro fertilization in situations involving women in same-sex couples.”
“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 quality for the benefit,” wrote Frosh. “In short, in fixing one source of differential treatment on the basis of sexual orientation, the bill inadvertently created another.”
“Right now the law in Maryland is being challenged because it is not available to same-sex couples with women because you have to use the husband’s sperm,” Frosh told the Washington Blade on Thursday during a telephone interview. “You’ve got to make it available to women partners, but you’ve created another issue with respect to heterosexual couples where the woman may need in vitro fertilization, but the husband’s sperm is not mobile.”
“We highlighted it and said it should be addressed in future legislation,” added Frosh, who stressed his letter does not say the bill is unconstitutional. “It’s a legal issue.”
State lawmakers last month approved the bill that state Del. Terri Hill (D-Baltimore and Howard Counties) and state Sen. Cheryl Kagan (D-Montgomery County) introduced in their respective legislative chambers.
Frosh told the Blade that Hogan has yet to respond to his letter.
Shareese DeLeaver-Churchill, a spokesperson for the governor, acknowledged to the Blade on Thursday that his office has received Frosh’s letter.
“The governor is reviewing the legislation and will make a decision on it in the near future,” said DeLeaver-Churchill.