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Reproductive Legal Update

by Melissa B. Brisman, Esq.

This month’s legal update begins with a discussion of recent steps taken by the Council of Europe to combat discrimination against members of the lesbian, gay, bisexual, and transgender communities in countries across Europe. Next, the update focuses on a new Austrian law that brings same-sex couples in the country one step closer to equal treatment with their heterosexual counterparts. The third item in the update highlights a new law in Southern Australia that allows heterosexual couples there to have children through the use of uncompensated surrogates. Finally, this month’s legal update ends back in the United States with a case before the Wisconsin Supreme Court. The Wisconsin Supreme Court is considering whether an insurance company can deny maternity benefits to a pregnant female member based on the fact that she is acting as a surrogate for someone else.

Combating Discrimination in Europe
There has been increased attention paid on the international stage in recent weeks and months to human rights violations perpetrated against members of the lesbian, gay, bisexual and transgender community. On November 16, 2009, the Committee on Legal Affairs and Human Rights within the Parliamentary Assembly of the Council on Human Rights published a draft resolution and recommendation urging European governments to guarantee legal recognition of same-sex partnerships, allow for joint parental responsibility for same-sex partners’ children, and even the right of same-sex couples to adopt each other’s children. During the week that we celebrate Thanksgiving here in the U.S., the committee will hold discussions on the draft resolution.

The resolution and recommendations seem to be a response to increased violence and repression of the lesbian, gay, bi-sexual and transgender communities across Europe, but especially in many of the Eastern European countries. The publication specifically mentions the repression of gay pride marches in several Council of Europe member states and the cancellation of marches in 2009 for fear of violent repression. It will be interesting to see how condemnation of discrimination and intolerance toward the lesbian, gay bi-sexual and transgender communities by the Council of Europe impacts the laws on family building and adoption for same-sex couples and homosexual intended parents in member states.

Same Sex Couples in Austria One Step Closer to Equality
The resolution by the Council of Europe suggests that much progress still needs to be made toward equality for same-sex couples across Europe, but Council of Europe member states are making strides in the right direction. Austria has a new law which allows civil partnerships for homosexual couples, although ceremonies at the civil registry’s office are still prohibited. The practical result of these civil partnerships is to give same-sex couples the same rights with regard to pensions and alimony that heterosexual couples already enjoy. The new law does not lift Austria’s ban on adoption or artificial insemination for gay couples. The new law is a result of weeks of negotiations between the country’s ruling Social Democrats and their conservative coalition partners in the government and will go into force on January 1, 2010 after final approval by Austria’s parliament.

Surrogacy Legalized in Southern Australia
Southern Australian couples who are suffering from infertility no longer need to look outside of their own country for opportunities to have children through a surrogate. On November 19, 2009, a bill was passed creating new law in Southern Australia that allows heterosexual couples to become parents through a surrogate so long as the surrogate receives no monetary compensation. Heterosexual couples qualify and benefit under the law whether they are married or unmarried.

Wisconsin Supreme Court to Decide on Insurance Benefits for Surrogates
Back in the United States, the Wisconsin Supreme Court will soon decide whether insurance companies can refuse to cover the maternity costs of surrogate mothers. Back in 2002, MercyCare Insurance Company and MercyCare HMO, Inc. filed a certificate with the Wisconsin Commissioner of Insurance seeking approval for a policy which excluded “surrogate mother services” from maternity benefits. The Commissioner granted approval. While covered members of MercyCare, two women entered into agreements to be gestational carriers and each became pregnant. Based on the “surrogate mother services” exclusion approved by the Commissioner in 2002, MercyCare denied coverage for these pregnancies. One of the women filed a complaint regarding the coverage denial with the Wisconsin Office of the Commissioner of Insurance.

While the Office of the Commissioner reviewed the complaint, MercyCare filed a sought approval for new exclusion language defining “surrogate mother” and excluding maternity coverage for “surrogates.” This time, the Commissioner denied approval on the basis that the proposed exclusion violated Wisconsin law and was “unfairly restrictive and discriminatory.” In February 2006, the Office of the Commissioner then filed a Notice of Hearing before the Commissioner against MercyCare stating that the insurer violated Wisconsin law when it denied coverage for the two women back in 2002.

The Commissioner concluded that MercyCare could not deny benefits for medical services to covered persons acting as surrogates. Insurers could not inquire into why a woman becomes pregnant or whether she intends to keep her baby. In response, MercyCare petitioned a Court to review the Commissioner’s decision. The Court concluded that the exclusion for surrogacy was permissible and the Commissioner appealed. A decision is expected by the Supreme Court soon.


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.

December’s Reproductive Legal Rights Watch

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