The LGBTI+ staff members of the EU institutions are still not fully equal to heterosexual staff members on the questions related to IVF costs reimbursement. This is the overview of rights given to heterosexual and homosexual staff members.
Maternity leave or Adoption leave and equivalent leave for gay men
The European Commission is currently revising the Decision on Leave, and in this context promised to “critically appraise” our request for introducing an adoption leave for gay men having children born through surrogacy that would be equivalent to current maternity and adoption leave provisions. The Decision is scheduled to be adopted by the end of the year.
If you fall under the following categories you should be granted equivalent leave to maternity leave and adoption leave;
- both male parents are on the birth certificate;
- one male parent (EU official) is on the birth certificate with another woman who has renounced her maternity rights;
- male parent (EU official) is the only person on the birth certificate.
For more information please contact Egalité.
IVF costs reimbursements
A lesbian colleague has been going through assisted reproduction treatments to have a baby with her wife. Her requests for reimbursement of 7 insemination expenses were rejected under the EU Joint Sickness and Insurance Scheme (JSIS) on the basis of the condition for insemination reimbursement which requires demonstrating pathology from the male person of the couple (with a medical report).
While the AIPN has argued that this condition is the same for all couples, it clearly discriminates against lesbians since there is no male person involved. The requirement to have one (and only one) male person constitutes a direct discrimination, as only heterosexual couples can possibly qualify in demonstrating pathology “from the male person of the couple”. Since LGBTI staff could never fulfill this condition, they are automatically excluded from the reimbursement of the costs of insemination treatments.
We consider that, with political will, the EU institutions can ensure equality of treatment for LGBTI colleagues. Since it was possible in the past and under the existing legal framework to cover insemination and IVF expenses for lesbian colleagues, we ask the European Commission to go back to a more inclusive interpretation of the rules.
In rejecting the art.90 complaint introduced by the colleague related to the non-reimbursement of insemination expenses, the AIPN argues that the JSIS only covers costs connected with a sickness. This is not correct, since the JSIS covers many costs that are not connected with any illness at all (e.g. costs related to pregnancy and delivery, consultation of a dietician, orthodontic treatment for children, etc.).
In addition, after 7 failed inseminations, the lesbian colleague introduced a request for authorization for In Vitro Fertilization (IVF) treatment over a month ago. The AIPN has rejected this request on the basis that there was no pathology. Again, this is due to a restrictive interpretation of the rules. The General Implementing Provisions (GIPs) of the JSIS state: “The costs of in vitro fertilization resulting from sterility connected with a pathological condition of the member or his/her spouse or partner will be reimbursed subject to prior authorization […]“.
Like for insemination, this restrictive interpretation of the rules is again prejudicial to lesbians, as the woman trying to have a baby may not have any pathology but may however suffer from unexplained infertility. It is important to know that scientific literature recommends switching to IVF after a number of failed inseminations as the success rate is higher with IVF.
ÉGALITÉ finds the present situation unacceptable for institutions which publically claim to fight discrimination on the basis of sexual orientation.
GIPs often simply do not foresee the case of LGBTI+ colleagues, which is not surprising, given the fact that the GIP on the JSIS for instance dates back to 2007. However, the existing legal framework can be interpreted in a way which meets the EU non-discrimination laws and the reality of the 21st century. The AIPN should adopt new decisions on how to interpret the GIPs in order to guarantee equal treatment of staff regardless of their sexual orientation.
We note that in more and more Member States the health insurance covers the costs of fertility treatment for lesbians and/or for single women, as mentioned in the parliamentary question raised by Malin Björk, MEP. The EU institutions are clearly lagging behind several Member States when it comes to the reproductive rights of the LGBTI+ staff.
There are now 12 EU Member States where couples (regardless of the partners’ sexual orientation and/or gender identity) are not facing any legal barriers in order to get fertility treatment, with often at least partial reimbursement of costs: Austria, Belgium, Croatia, Denmark, Finland, Ireland, Luxembourg, the Netherlands, Portugal, Spain, Sweden and the United Kingdom. Under the Belgian system in particular, lesbians benefit from the reimbursement of all insemination and IVF costs except the acquisition and preparation of sperm.
By issuing guidance as we request, the AIPN would allow the EU institutions to be aligned with this growing number of Member States.
We propose that the AIPN issue guidance, setting out that:
- LGBTI+ staff may benefit from the same reimbursement of insemination treatments as heterosexual couples, without having to demonstrate any pathology;
- LGBTI+ staff may benefit from the reimbursement of IVF treatments without having to demonstrate any pathology, after a given number of failed inseminations, taking into account the scientific literature.
 An article published in “Fertility and Sterility” summarises the findings of a study “Predictive factors for pregnancy after intrauterine insemination (IUI): an analysis of 1038 cycles and a review of the literature” (Merviel P, Heraud MH, Grenier N, Lourdel E, Sanguinet P, Copin H., Jan. 2010). The article states: “In women under 40 years of age, 3-4 cycles should give a reasonable chance to achieve a pregnancy, and if the patient is open to other types of treatment after this many cycles of IUI, IVF should be recommended. In women with an ovulatory cycles or when donor sperm is used, IUI can be attempted up to 6 times.”
 Parliamentary question P-00556-16 of 6 July 2016.
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