# 2017-006 - Discrimination of Same-Sex Couples, In Vitro Fertilization

Case Summary

F&R Date: 2017–04–13

The grievor and her same-sex partner, both Regular Force (Reg F) members, sought and received a fertility consultation referral from the Canadian Armed Forces (CAF), but were advised that there would be no financial coverage by the CAF for the initial consultation fee, investigation costs, nor for in vitro fertilization. The Medical Officer advised the grievor that elective fertility treatments were not reimbursable unless there was a demonstrated medical fertility issue. The CAF definition of infertility is a failure to achieve a successful pregnancy after 12 months of unprotected sexual intercourse or therapeutic donor insemination (TDI).

The grievor argued that the denial of her request for a fertility consultation and investigation costs, and the Spectrum of Care (SoC), were discriminatory based on sexual orientation. She noted that the SoC states that eligible members include Reg F members, and she should be entitled to investigation of infertility. She stated that to expect a same-sex couple to reach the CAF definition of infertility is discriminatory and places a large financial burden on the couple given the excessive costs of TDI. As redress, she requested reimbursement for the infertility consultation and investigation fee, which, in her view, are all part of testing which is relevant to basic female health with respect to fertility.

The Commander of Canadian Forces Health Services (CFHS) Group, acting as the Initial Authority (IA), denied the grievance. He stated that, in keeping with the CAF definition of infertility, the grievor had the option to undergo TDI for one year to determine whether she was infertile. The IA stated that, while it was reasonable for the CAF to provide access to a fertility referral, investigations, and treatment, the CAF was not obliged to cover the associated costs unless there was a medical reason for doing so. The IA confirmed that, since a consultation is independent of whether the grievor is infertile, she is entitled to reimbursement of the consultation fee. He noted that the CAF approach is consistent regardless of whether a member is single, in a heterosexual or same-sex relationship, and therefore the CFHS is not acting in a discriminatory manner towards the grievor.

Given that the grievor was entitled to the consultation fee as confirmed by the IA, the issue before the Committee was whether the grievor should be reimbursed fertility investigation fees. As a Reg F member, the Committee noted that the grievor was an eligible person entitled to investigation of infertility as set out in the SoC Supplemental Health Care. With respect to the investigation fees, the Committee found that it was unreasonable and discriminatory to expect a same-sex couple to prove they were infertile based on the CAF definition. Further, the Committee stated that, according to the CAF, a same-sex couple would be required to bear a significant cost for 12 months of TDI to prove infertility, which is a burden that is not imposed on a heterosexual couple. The Committee found that the CAF's approach was discriminatory based on the prohibited grounds of sex. The Committee also found that for investigation purposes, same-sex couples should be deemed as eligible for infertility investigations because they cannot biologically conceive and are de facto infertile as a couple. The Committee recommended that the costs of fertility investigation incurred by the grievor be reimbursed to her.

FA Decision Summary

FA Decision Pending