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Reproductive Legal Update
by Melissa Brisman, Esq.
This month’s update begins with some interesting information for infertile individuals and couples struggling with insurance coverage for their reproductive arrangements. Next, we look at exciting legal developments for lesbian couples across the country. Finally, heading down to Florida, this month’s update makes note of a comment from Governor Charlie Crist with regard to Florida’s longstanding ban on same-sex adoptions in the state.
Would Universal Health Care Benefit the Infertile?
Research into insurance coverage is a necessary part of many reproductive arrangements. Infertile individuals and couples may find that their insurance companies will cover some or all of the costs of the medical costs associated with diagnosing and treating infertility. Unfortunately, many others learn quickly that they will have to pay all medical costs out-of-pocket. In California, Deborah Dunn Yeager was suffering from infertility and sought treatment. She discovered that the insurance she had through her employer, Blue Cross of California, only paid up to $2,000 per year for half the cost of Ms. Yeager’s infertility treatments. Unable to achieve pregnancy without exceeding this $2,000 limit, Ms. Yeager sued the insurance company. She sought recovery of her out-of-pocket expenses for the infertility treatments that she received above the $2,000 annual limit and for her pain and suffering from losing her chance to bear a child.
Ms. Yeager’s basic argument was that California has a legislative mandate requiring health insurance companies to provide coverage for treatment of infertility and that the terms of coverage provided by her insurance company were inadequate under this mandate. The insurance company moved for summary judgment arguing that the infertility coverage it offered was negotiated with Ms. Yeager’s employer and satisfied the mandate. The court agreed. Ms. Yeager appealed that decision and her appeal was denied.
As the country tackles universal health care, it will be interesting to see what benefits there may be for infertile couples. Recently, residents of Indianapolis, Indiana held a rally in support of universal health care coverage, including coverage for fertility treatments. One couple attending the rally explained that their insurance company did not want to pay for their in vitro fertilization, describing the in vitro as an “elective” procedure. The couple paid $12,000 out-of-pocket for the in vitro and, happily, are expecting triplets this fall. They are hoping for substantial changes in the law so that other couples do not face the same challenges.
Legal Triumphs for Lesbian Parents
Lesbian couples having children through the use of artificial insemination should be heartened by encouraging developments in the law in the last several weeks. In Oregon, a woman, Sondra Lee Shineovich, sought a declaration that she was the legal parent of two children conceived through artificial insemination by her former same-sex partner. Ms. Shineovich and her partner were in a ten-year relationship which ended during the pregnancy of their second child. After the couple separated, Shineovich sought a declaration of legal parentage and was denied by the trial court. On appeal, Shineovich prevailed. The Oregon Court of Appeals found that the Oregon law creating a presumption of biological paternity in a married man with respect to the children of his wife conceived using artificial insemination was unconstitutional as it did not provide that same presumption for two women in a domestic partnership.
The District of Columbia enacted a law, entitled the Domestic Partnership Judicial Determination Parentage Act of 2009, which allows the domestic partner of a birth mother to be included on the birth certificate as a parent to the child. This law is revolutionary as it recognizes two legal parents from the moment of birth for children conceived through artificial insemination to same-sex or different sex unmarried couples. The law also limits a biological parent’s ability to disrupt a stable parental relationship between the child and the person who is married or in a domestic partnership with the child’s birth mother.
This law is an effort to provide equal treatment to same-sex and heterosexual couples. When a heterosexual married couple uses artificial insemination to have a child, the husband is presumed to be a legal parent of the child. With the enactment of this law, a lesbian couple is entitled to the same presumption and will have the same economic and emotional security at the time of birth.
A similar law will go into effect in New Mexico in January 2010.
Opposition to the Gay Adoption Ban in Florida
Finally, Florida Governor Charlie Crist appeared to waiver in his opposition to gay adoption in Florida. A ban on gay adoption has been in place in Florida since 1977. At present, there is an ongoing lawsuit filed by the American Civil Liberties Union seeking to have the ban overturned.
During his statewide tour for “Explore Adoption Day,” Governor Crist spoke encouragingly about the increased rate of adoption in the state. With 3,674 adoptions in 2007 and 3,700 in 2008, Florida has set record adoption rates. At the same time, Florida has decreased the number of children entering the state’s foster care system by over thirty percent. At the state capitol, when asked he would support legislation to change the existing ban on gay adoption, Governor Crist replied that he would “have to think about it.” This answer appears to slightly soften the position he has taken repeatedly while running for office which stated that “traditional family is the best to adopt.”
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 Cuozzo 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. Cuozzo can be reached at email@example.com.