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Legal Update: Health Care Reform and Your Fertility

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by Melissa Brisman, Esq. and Lauren Murray, Esq., May 11, 2010

This month’s legal update focuses on the passage of comprehensive health care reform by the U.S. Congress and a memorandum issued by President Barack Obama concerning hospital visitation.

Health Care Reform

There has been no shortage of debate over President Barack Obama’s plans to reform the health care system in this country. Now that details about our new comprehensive health care reform legislation are coming to light, I find myself reflecting on how the new legislation will impact reproductive law and the field of infertility.

The infertile individuals and couples who come to my agency to match with a surrogate or gestational carrier or who come to my law office for reproductive law legal advice may criticize the new legislation for its silence with respect to infertility. It’s true, the legislation does not expand coverage for infertility procedures or require coverage for such procedures. Further, there is no information at this time about how this new comprehensive legislation will affect already existing state benefit mandates which require health insurance companies to provide coverage for the diagnosis and treatment of infertility.

These infertile individuals and couples may also criticize the new legislation because it may limit their ability to save for their medical treatments on a tax-free basis. The new legislation caps contributions to flexible spending accounts at $2,500 starting in 2013 and the threshold for itemized deductions for unreimbursed medical expenses is scheduled to increase from 7.5 percent of adjusted gross income to 10 percent.

At the same time, the new health care legislation guarantees coverage for maternity care. It also provides women with direct access to obstetricians and gynecologists, without a referral, and protects obstetrical and gynecological ultrasounds from coverage cuts. This coverage guarantee is momentous for couples who require the services of a gestational carrier and for women who are contemplating acting as gestational carriers.

Coverage for Surrogacy?

Insurance coverage is one of the most difficult issues facing an individual or couple, as intended parents, who seek to have a child through a gestational carrier or surrogate. If intended parents are fortunate, they have existing health insurance which covers all or at least a portion of their infertility procedures. If they are very fortunate, their insurance covers the carrier’s pregnancy as well. Much more often, however, intended parents must pay for the fertility procedures out-of-pocket and then rely on their gestational carrier’s own insurance to provide coverage for the pregnancy itself.

One specific service my law firm provides is review of intended parents’ or gestational carrier’s insurance policies for exclusions which could result in a denial of coverage for the pregnancy. These exclusions can take many forms from an outright denial of coverage for “surrogate pregnancy” to an exclusion for “work for pay or profit” where the insurer argues that a compensated gestational carrier should be excluded. If a gestational carrier’s insurance appears to have an exclusion, or simply does not provide maternity coverage, then intended parents only reliable option is to purchase expensive surrogate pregnancy insurance coverage.

To some intended parents, this surrogate pregnancy insurance is simply outside the budget and the fear of an expensive and uninsured pregnancy by their carrier prevents them from being able to move forward and have a child. Other intended parents decide to take the gamble and rely on their carrier’s insurance, hoping that the insurance company does not deny. Increasingly, insurance companies are denying coverage for gestational carrier/surrogate pregnancies and the intended parents must either negotiate directly with the hospital or litigate with the insurance company, neither of which is an appealing option. Likewise, as a result of an insurance company’s denial of coverage, a gestational carrier is left with mounting unpaid medical bills and even collections actions which can permanently harm her credit.

All of this worry and complication may be avoided as a result of the new health insurance legislation. Although it’s too early to tell, as a result of this legislation, intended parents may be able to have more confidence that a gestational carrier with insurance will have maternity coverage. Similarly, women interested in becoming gestational carriers or surrogates might have increased confidence that they will have insurance coverage for the pregnancy and they will not need to fear any damage to their credit.

We will need to wait and see whether the exclusions that cause such concern to my clients now will fade. However, if this legislation really provides guaranteed maternity coverage, it may open the door to surrogacy for a larger number of intended parents and surrogates.

New Rules for Hospital Visitation for Gays/Lesbians

While debate is still raging over comprehensive health care reform, President Obama created a further stir in a recent memorandum to his Secretary of Health and Human Services, Kathleen Sebelius. In the memorandum, President Obama states that hospitals should not be able to deny visitation privileges on the basis of sexual orientation or gender identity.

The memorandum ordered the development of new rules and regulations to ensure that hospitals extend visitation rights to same-sex partners of homosexual patients. It’s worth noting that these rules would apply not only to homosexuals, but also to widows and widowers who have been unable to receive visits from a friend or companion. Further, these rules would allow members of some religious orders to designate someone other than a family member to make medical decisions on their behalf.

Critics of the memorandum argue that the new rules would lead to an increase in conflicts between family members, same-sex partners and hospital staff over end-of-life decisions. However, from the perspective of a reproductive attorney who has many clients in same-sex relationships, this memorandum strikes me as long over due.

When representing a same-sex couple, it is my obligation to see that the family they have created is legally protected from challenge. It is, therefore, encouraging to see a shift in rules so that if a same-sex couple I have represented find themselves in a situation where one would want the other to make medical decisions on his or her behalf, or simply wants his or her life partner and children by the bedside during a fight against a life-threatening illness, there will not be as many obstacles in their path.


Melissa B. Brisman is an attorney who practices exclusively in the field of reproductive law and is considered by her peers to be a leader in her profession. Ms. Brisman’s experience and qualifications are unparalleled. She employs an experienced and qualified staff of legal and administrative professionals and is licensed to practice law in Massachusetts, New Jersey, New York and Pennsylvania. Ms. Brisman has a practice, Melissa B. Brisman, Esq., LLC, located in Montvale, New Jersey, offering a full range of legal services in connection with gestational carrier arrangements, ovum, sperm, and embryo donation, and adoption. In addition, Ms. Brisman is sole owner of Reproductive Possibilities, LLC, an agency that facilitates gestational carrier arrangements, and Surrogate Fund Management, LLC, a company that manages escrow in connection with reproductive arrangements.

Lauren Murray is an attorney licensed to practice in New York and New Jersey. She is an associate at the firm, Melissa B. Brisman, Esq., LLC, and focuses her practice solely on transactional and litigation work associated with reproductive law. Ms. Murray can be reached at