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Gay father-to-be files human rights complaint alleging IVF discrimination

An Ottawa man has filed a human rights complaint against the Ontario Teachers Insurance Plan and one of its insurance providers because he says the in vitro fertilization policy, which does not cover drugs for a surrogate, discriminates against gay men.

French teacher Greg Mountenay, 33, is set to be a first-time dad to a baby girl in May after almost three years of research into in vitro fertilization (IVF) and surrogacy.

It was early in 2022 when he learned fertility drugs for a surrogate were not covered by his insurance through his insurance plan (OTIP) because, according to an email from the executive director overseeing his union’s benefits, “a surrogate mother does not meet the definition of an eligible dependent.”

He filed an appeal to his union, OTIP and Manulife over drug coverage, and separately launched a grievance with the Human Rights Tribunal of Ontario

Mountenay said the couple’s “lack of a uterus” means they could never access up to $18,000 in fertility drugs as outlined in the health insurance plan for public school teachers. 

“That leaves me feeling pretty helpless,” said Mountenay.

Benefits only cover primary applicant, spouse and children

His union, the Ontario Secondary School Teachers’ Federation (OSSTF), is one of four teachers’ unions that oversee the not-for-profit OTIP.

Each runs its own employee life and health trust, which acts as the plan’s sponsor, with benefits and eligibility rules varying between them. 

In an email to CBC, OTIP says it merely acts as an administrator for benefits as negotiated and controlled by the unions, and directed requests about Mountenay’s case to OSSTF. 

OSSTF said it could not comment on individual claims. 

Manulife is the company contracted to provide health coverage in this case. As part of the policy Mountenay falls under, fertility drug benefits would only cover the primary applicant, their spouse and children. 

This is a familiar position for many male same-sex couples, according to the CEO of one of Canada’s largest surrogacy and egg donation agencies.

“Their [insurance] company sees it and says, ‘Well, estrogen, progesterone — that’s not a medication prescribed to males,'” said Leia Swanberg from Canadian Fertility Consulting.

Ultrasound images sit on the kitchen table of Mountenay’s home located in Ottawa’s rural west end. (Joseph Tunney/CBC)

Always wanted to be ‘a teacher and a dad’

Mountenay met his future husband, Sean O’Meara, in October 2018 and they decided “on our first date” they wanted children.

“For me, I have always known I wanted to be two things: a teacher and a dad,” said Mountenay.

He began inquiring about insurance coverage for the surrogacy process for in vitro fertilization (IVF) in the fall of 2020.

The couple then found a willing egg donor — who would also carry a baby using sperm from Mountenay’s husband — but learned surrogates don’t qualify as dependents in February 2022.

Two men wear white shirts and rainbow suspenders in front of a house.
Greg Mountenay, left, and his husband Sean O’Meara stand in front of their home in Ashton. (Submitted by Gregory Mountenay)

Mountenay said the surrogate still underwent egg retrieval because the couple had already spent hundreds of dollars for medications and tests. To date they’ve spent more than $20,000 to be fathers.

“We are now [at] 32 weeks, like the size of a pineapple. It’s very exciting,” Mountenay said from his home in Ashton, in Ottawa’s rural west end, last week. “I felt the baby kick a few times.” 

In a letter from the OTIP appeal committee dated April 1, 2022, which explained why the appeal was denied, Mountenay was told the decision “does not in any way dispute the necessity” of a surrogate, but merely confirmed the benefits plan does not provide financial reimbursement for medications or services unless they are for members or dependents. 

Mountenay filed his human rights complaint alleging discrimination over sexual orientation and gender identity — both of which are protected under the Ontario Human Rights Code. 

A hearing date has not been set. 

Insurance policies still evolving 

Manulife has plans that would cover surrogates but they aren’t considered standard, which means employers or sponsors would have to opt in. This is a similar situation with other insurance companies such as Sun Life.

Under standard plans, heterosexual couples who use a surrogate face similar challenges as same-sex couples.

A man holds a onesie meant for a newborn. The printed letters on it read "There's no dads like the ones I've got."
Mountenay and his husband have been preparing the nursery for his daughter, who is due in early May. He has also been making his own onesies. (Joseph Tunney/CBC)

In an emailed statement Manulife spokesperson Kim MacFarlane said, while surrogacy has been around for some time, it’s only now starting to influence and evolve coverage.

Ontario’s Ministry of Health also covers one treatment cycle, which can include the process of egg retrieval and embryo transfer, at a funded clinic. 

Provincial funding helped Mountenay and his husband save upwards of $3,800, but they say it’s less than 20 per cent of what they’ve spent so far in medication and other related costs.

Swanberg said anyone in a similar position to Mountenay should follow his path and hire a human rights lawyer. 

“[You should ask] about why I … am being discriminated against?” she said. 

“We have had many intended parents fight that good fight and have won. And we have also had clients who have not been successful.”

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Male same sex couples face ‘unique challenge’ when pursuing IVF, fertility consultant says

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Canadian Fertility Consulting CEO Leia Swanberg said she encourages her clients to talk to a human rights lawyer when claims for fertility medications are denied on the basis that the applicant isn’t biologically female.

Toronto fertility doctor Prati Sharma estimates one in five couples who walk through the doors at the CReATe Fertility Centre are same-sex couples. 

Gaps in coverage are tricky and expensive to navigate, Sharma said, but she added insurance providers are starting to recognize “we really need to up our game in terms of coverage because patients expect this.”

“Patients are pursuing these types of [fertility] treatments,” she said.

Mountenay said the arduous process has made it difficult to teach his students about equity when he feels he’s been subject to a lack of fairness, but he has refused to let the cost stop him.

“I’ve always wanted to be a dad,” he said. “So obviously, I’m going to pay.”

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