Class action approved against HMOs: "Discriminating against men in pregnancy and childbirth services"

Four years after it was filed, the Regional Labor Court in Tel Aviv approved on Sunday a class action lawsuit against Israel's four HMOs - Clalit, Maccabi, Meuhedet, and Leumit. At the center of the lawsuit is the claim that the HMOs discriminate against men within the framework of supplementary health insurance (SHABAN) plans by limiting various services and reimbursements related to pregnancy, childbirth, and newborn care to women only.

The class action was filed by a group of men insured under the various HMOs' SHABAN plans. The group includes straight men (whose partners have already exhausted their pregnancy and childbirth package) alongside men in same-sex relationships. The plaintiffs, represented by Adv. Dr. Hagai Kalai, complained that their requests for financial reimbursements for "sleep consulting" for infants were rejected because the insurance coverage in the HMOs' bylaws is provided to mothers only.

According to the applicants, the SHABAN bylaws are tainted by systematic, gender-based, and improper discrimination. It is claimed that this discrimination prevents men from receiving financial reimbursements for services related to the health and welfare of their children, with the damages being particularly severe among homosexual men or single fathers. The applicants estimate the size of the discriminated insured group at at least 625,000 men in the seven years preceding the filing of the application.

The HMOs defended themselves by claiming that providing pregnancy and childbirth services to women only is based on a relevant difference and physical-medical condition, and therefore does not constitute prohibited discrimination. They emphasize that the SHABAN plans are managed as a "closed fund" based on actuarial balance, and accepting the lawsuit would lead to budgetary damage and an increase in membership fees for all members. In addition, they claimed they acted in accordance with bylaws approved by the Ministry of Health.

The Ministry of Health noted during the proceedings that regarding most services included in pregnancy and childbirth packages in SHABAN, granting eligibility to women only does not constitute discrimination. However, the Ministry of Health noted that regarding services focused on the newborn or parental care, such as sleep consulting, granting eligibility to women only raises a legal difficulty. The Ministry further noted that the HMOs acted throughout in good faith and in accordance with legal authorization.

Judge Ofira Dagan-Tuchmacher determined that the plaintiffs established a factual and legal basis justifying the management of the proceeding as a class action:

"The applicants managed to prove, apparently, that the 'sleep consulting' service provided in the period after the end of the postpartum period is a service that benefits both parents equally, and regarding this service, there is no basis for distinguishing between the parents providing care based on sex, let alone in a way that establishes and reinforces improper stereotypes."

The judge noted that the court was impressed that the HMOs acted in good faith in accordance with regulatory approval, but acknowledged that the Ministry of Health currently believes that an amendment is required regarding postpartum services.