The VA and the Pentagon must end their anti-gay IVF regulations
Special to Stars and Stripes November 14, 2023
In 2013, hope finally felt possible for Stacey and Angela Shunk, two women who fell in love while serving this country as Air Force service members in Italy. After countless denials, the Shunks received notice that they would become the first same-sex couple in the U.S. Air Force to receive a “Join Spouse” assignment — a guarantee to station married couples at the same duty location. Recently married, both in their 30s, and planning to build their family, the Shunks were relieved. This hope crumbled all too soon when the Shunks learned the military refused to cover in vitro fertilization — their only hope for biological children — because they are gay.
At the time, the military and the Department of Veterans Affairs paid for IVF for married, opposite-sex couples capable of producing their own sperm and egg who are severely ill or injured. On average, a single IVF cycle costs $30,000 and five to 10 IVF cycles are often necessary to achieve viable pregnancy. Because they are lesbians, the Shunks were forced to pay this astronomical cost out of pocket, depleting their hard-earned nest egg saved over years of military service and deployment. Adding insult to injury, the Shunks had to repeatedly fly to England for IVF care because Italy also denied IVF to same-sex couples. Ultimately, none of the Shunks’ IVF cycles were successful.
Shockingly, 10 years later, nothing has changed. Today, the departments of Defense and Veterans Affairs’ IVF policies continue to facially and arbitrarily exclude same-sex couples. Their discriminatory provisions violate the U.S. Constitution and the Supreme Court’s 2015 holding in Obergefell v. Hodges, stating that same-sex couples have the right to marry and access to the same “constellation of benefits” legal marriage provides. Despite the military’s proclamations of support for military families, the Shunks are among thousands of LGBTQ+ and single service members and veterans denied access to IVF — medical care necessary to build their families — because they are gay or unmarried. For these individuals, Veterans Day last Saturday felt disingenuous; if the military demeans their basic identities, how can it honor their service?
The DOD and VA’s purpose isn’t vague. Veterans Health Administration Directive 1334, written to emulate DOD’s IVF policy, says that “IVF services are only available to a cisgender opposite-sex legally married couple or other legally married couple with opposite-sex gametes/reproductive organs.” After serving their country, many LGBTQ+ veterans and service members deserve to build the families they fought for. Family support is critical to military readiness and to the success of military-affiliated Americans. Despite repealing “don’t ask, don’t tell,” military and VA leaders are negligent in failing to modernize their IVF policies with America’s legal imperative to treat same-sex married couples equally.
There is an easy solution. Overnight, the Biden administration could declare DOD and VA’s IVF policies unconstitutional and demand their modification. This August, the National Organization for Women’s New York City Chapter, the organization for which I serve as executive director, sued DOD and VA to do exactly this: acknowledge their IVF policies are unconstitutional (as they did with “don’t ask, don’t tell”) and violate the Affordable Care Act, then immediately change them. Represented by the Yale Law School Veterans Legal Services Clinic and Reproductive Rights and Justice Project, we sued on behalf of NOW-NYC members who are service members and veterans unable to access IVF under these discriminatory policies. We also sued to honor NOW-NYC members like the Shunks, whose IVF dream unnecessarily died.
DOD and VA’s severe IVF restrictions extend beyond LGBTQ+ individuals. The DOD also restricts covered IVF to service members who are severely ill or injured. The VA limits coverage to veterans with “service-connected” injuries, a subjective determination. Even when these high burdens are met, DOD and VA exclude service members and veterans unable to use their own sperm or eggs due to illness or injury — the exact beneficiaries these policies ought to cover. At a 2023 House of Representatives hearing, a VA doctor testified that a veteran whose testicles were destroyed in the line of duty did not qualify for IVF because he could not produce his own sperm, despite being straight and married.
Making matters worse, infertility pervades the military community at higher rates than the general public. Beyond combat-related injuries, veterans and service members are exposed to toxic chemicals, environmental hazards, post-traumatic stress, and military sexual assault, all of which are proven to harm fertility. And as was the case for the Shunks, basic demands of military life like deployments and permanent station changes force service members and veterans to delay marriage and child rearing.
“Throughout my time in service, and now as a veteran, I have seen so many friends and colleagues struggle with fertility. This is not just a coincidence; our service has seriously impacted our ability to build families,” says Renée Mihail, a law student intern with the Yale Law Veterans Legal Services Clinic, West Point graduate and Army veteran. “We risked our lives serving the people of the United States; the least the government can do now is help us build the futures and families we delayed for so long.”
Amber Bohlman, a 36-year-old veteran, NOW-NYC member, and fish culturist in Fairbanks, Alaska, who did two tours in Iraq in her 20s, was also denied IVF after countless failed attempts at intrauterine insemination. Bohlman is both gay and unmarried, without a sufficient “service-connected” injury. In reflection, she told the 19th, “Why are you forcing me to fit this nuclear family idea of what you want us to look like?”
“Members of the military endlessly sacrifice for our country. We go where they tell us to when they tell us to, devote our prime family building years to the military, and put ourselves in harm’s way,” says a member of NOW-NYC, maintaining their anonymity. “The military preaches the importance of families in our mission, but when the time comes for some of us to build our own, we are told we don’t qualify. Discriminatory requirements should not hold us back from building the families we have suffered so much to have.”
After spending tens of thousands of dollars for a failed IVF cycle, and five failed fertility treatment cycles in total, the Shunks gave up on their dream of having biological children. After additional discriminatory hurdles, they successfully adopted four children who they adore. While it’s too late for the military to grant the Shunks the respect they earned and deserved after 42 years of collective Air Force service, the Biden administration can and should prevent thousands more service members and veterans from enduring the same fate.
NOW-NYC honors veterans like the Shunks who fought to make the military more inclusive. But the fight is far from over. Responding to our litigation or simply acting in good faith and adherence to the Constitution, the Biden administration must take immediate action to change DOD and VA’s anti-gay IVF policies and grant all veterans and service members the respect and opportunity for family building they deserve.
Sonia Ossorio is executive director of NOW-NYC.