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The New York State Fertility Mandate and Compulsory Heterosexuality

But a law expanding the right to reproductive choice is far from universal

On January 1, 2020, New York became the tenth state to increase access to fertility treatments by enacting the New York Fertility Mandate, which requires health insurance companies to cover fertility procedures and medications to residents. Access to financial reimbursement for fertility treatment is a cause for celebration for many individuals seeking care for infertility, a notoriously expensive medical diagnosis to treat. The gold standard in fertility treatment is in vitro fertilization (IVF), where the fertilization of the egg with the sperm is conducted outside of the body—but the average cost of just one cycle is between $10,000 and $15,000, and most patients require more than one cycle

While more New Yorkers will now be able to access this costly treatment to grow their families, there are many individuals and couples who are excluded from this new law, including low-income minority women, self-employed individuals, and gay male couples. Additionally, lesbian individuals, to whom the law does apply, need a medical diagnosis of infertility to make use of the law’s benefits. This qualifier acts as a barrier from utilizing the advantages offered by this law. The limitations and outright exclusions of this new law reveal its heteronormative structure, reinforcing what Adrienne Rich calls “compulsory heterosexuality.”

The New York State Fertility Mandate requires large insurance companies providing coverage to at least one hundred employees to cover medically necessary egg and sperm freezing, infertility testing and medications, and up to three cycles of IVF treatments. To receive monetary insurance reimbursement for fertility treatment, individuals must have an infertility diagnosis, defined as the inability to get pregnant after twelve months of intercourse or donor insemination. While on the surface this description may seem equitable for lesbian individuals and couples, one year of donor inseminations requires money and time that is not needed for heterosexual intercourse. Moreover, this law does not apply to male couples, Medicaid recipients, who are predominantly of color, people working in companies with fewer than one hundred employees, companies that self-insure, and those who are self-employed with individual insurance plans. 

The New York Fertility Mandate illustrates what Adrienne Rich calls “compulsory heterosexuality,” a pervasive, invisible, and undertheorized idea that is accepted as the implicit norm by nearly all circles, including feminists. This heteronormative culture has caused lesbians to be othered and pathologized. As Panteá Farvid writes, “heterosexuality is naturalized and organized institutionally via social and cultural practices and representations and in the mundane everyday.” Rather than being an innate inclination, heterosexuality is an institution that coerces people into heterosexual preferences and behaviors. The impact of “compulsory heterosexuality” renders lesbians invisible and erases lesbian knowledge, culture, and history. The enforced norm of heterosexuality conceptualizes lesbianism as a reaction to men and patriarchy, instead of a valid and sensible preference. 

The marginalizing effects of heteronormativity are widespread. As Rich observed, “compulsory heterosexuality” influences “the female wage scale, the enforcement of middle-class women’s ‘leisure,’ the glamorization of so-called sexual liberation, the withholding of education from women, the imagery of ‘high art’ and popular culture, the mystification of the ‘personal’ sphere, and much else.” Rich responded to this marginalization by illuminating how “lesbian existence” can liberate and empower all women. Understanding and validating lesbian existence can unearth the multitude of experiences of women situated in various social locations, destabilizing the heteronormative ideal of the white, middle-class woman. 

Rich’s paradigm of “compulsory heterosexuality” can be seen as an organizing principle in the New York Fertility Mandate—a law that is supposed to benefit women, but in actuality, constrains them. The first glaring example of the law’s heteronormative underpinnings is in its qualifiers, limiting the benefit to a medical diagnosis of infertility and assuming the heterosexual couple as the norm. For a lesbian or single woman to receive a diagnosis of infertility for insurance coverage, they must first pay out of pocket for up to one year’s worth of donor insemination and are not reimbursed if they conceive during this period. This law then ultimately benefits heterosexual couples, and in particular, women of higher socioeconomic status who are typically white. Male couples are also excluded from this law, reinforcing the notion that reproduction is exclusively women’s domain, and so the burden of navigating the reproductive health world should land on women. 

This law continues a legacy in the United States of encouraging reproduction for heterosexual, white, middle-class women. It limits access to everyone else who could benefit from fertility care, such as low-income, racial minority, and non-heterosexual women. The enforcement of “compulsory heterosexuality” can still be identified in practices, procedures, and policies being enacted today, turning a policy ostensibly aimed at supporting women into one that creates further inequalities among them.

Ellen Yom is a licensed clinical social worker and MA student in Psychology at the New School for Social Research. 

This piece was originally published at Public Seminar on May 4, 2020.

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