Marriage for everyone has been around for four years, which was a great victory for homosexual couples. Of course, if you consider the legal obstacles that still stand in their way today, it was probably just a stage win. One of the persistent inequalities concerns artificial insemination: While the statutory health insurance pays the costs for the classic man-woman marriage, lesbian couples have to pay for the treatment themselves – which can quickly add up to 10,000 or 20,000 euros.
This Wednesday, the Federal Social Court is negotiating the question of whether this is compatible with the Basic Law. A woman who is married to her partner has sued. She suffers from a fertility disorder and wanted to get pregnant through artificial insemination. When the health insurance company did not want to pay the cost of the first attempt in the amount of 6500 euros, it took it to court.
The social court in Würzburg as well as the regional social court in Munich dismissed the lawsuit. This is because the law actually only provides for the assumption of costs for heterosexual marriages: Not only is the marriage certificate a prerequisite, but also that “only the spouses’ egg and sperm cells are used”. Women who cannot become pregnant the normal way must be married to the sperm donor in the case of artificial insemination – or pay for the treatment themselves.
This leads to the question of what actually distinguishes the desire for children between lesbian and heterosexual couples. The pain of not being able to have children is the same. Even the security that the offspring can expect cannot be differentiated between lesbian and heterosexual couples. In addition, artificial insemination is allowed here and there. According to the law, the decisive difference is made by the genes: If they come from the outside, from the sperm bank, the health insurance fund does not pay.
Is that a violation of the principle of equal treatment? The regional social court did not want to recognize any discrimination based on sexual orientation. Because the rejection of the assumption of costs could also affect mixed-sex couples, namely if the man is unable to procreate.
Should one discrimination justify another disadvantage?
With a certain chutzpah, the Bavarian court adds another point to justify the disadvantage of same-sex couples: the best interests of the child. If a child is born in a lesbian marriage, the mother’s wife does not automatically become the second mother, but has to adopt the child first. It is different in heterosexual marriages: at birth, the man becomes a father, regardless of who fathered the child. The court has therefore considered the following: If the mother’s wife decides against the adoption, then the child would only have one parent – and only one maintenance claim. That is a minus for the child’s well-being.
Of course, this sounds as if the court wanted to justify discrimination against homosexuals with a different form of disadvantage. Because automatic co-motherhood for lesbian couples has long been called for, for example by the previously opposition Greens. And anyway, the best interests of the child. If you think this through to the end, you come to a rather absurd result: In same-sex families, it does not serve the best interests of the child that his conception is supported by funds from the health insurance company.
Should the Federal Social Court consider the law unconstitutional, it would have to appeal to the Federal Constitutional Court. It would be conceivable, however, that politics would be faster here. According to their election manifesto, the Greens want to abolish discrimination, both in reimbursement of costs and in parenting.