Infertility has been classified as a disease by a number of organizations, including the American Society for Reproductive Medicine (ASRM) and RESOLVE: The National Infertility Association. However, insurance providers do not consider infertility as a disease and therefore do not consistently cover fertility treatments, leaving most infertility patients with no choice but to pay out-of-pocket for expenses including in-vitro fertilization (IVF).
Once a couple conceives, medical insurance policies cover prenatal care and birth related expenses for infertility patients as they would for any other pregnancy. However, some couples will turn to surrogacy for a gestational carrier to carry their child. Regardless of whether the gestational carrier is compensated or not, some insurance providers in the past contained a “surrogacy exclusion” clause in their policies. This term means that although these insurance providers typically cover pregnancies, they will not cover a pregnancy if the woman who is carrying the child is a surrogate for another individual or couple.
Lack of insurance coverage for a surrogacy pregnancy is very costly and risky for intended parents. For example, if a surrogate experiences a high risk pregnancy with twins who are born premature via a caesarian section, the intended parents’ out-of-pocket costs can easily exceed $100,000. While intended parents typically have other insurance coverage choices such as purchasing a surrogacy insurance plan, such plans can be very expensive, and can carry a deductable of $15,000.
The good news is that as of January 1, 2014 insurance providers may potentially be in violation of federal law if they implement a surrogacy exclusion clause in their policy.
The Affordable Care Act (ACA) mandates that certain conditions that are categorized as “essential health benefits” must be covered by insurance providers. The ACA specifically lists certain conditions that are essential health benefits, which include maternal and newborn care. This means that as of January 1, 2014 all pregnancies must be covered.
The ACA further specifies that insurance providers cannot impose any preexisting condition exclusions. Moreover, if insurance providers continue to discriminate against the infertility community for building their family through a surrogate, such discrimination can be viewed as discrimination based on a pre-existing condition, which is a violation of the ACA.
While surrogacy pregnancies should be covered by every insurance provider, in accordance with the ACA, there is no guarantee that every insurance provider will comply with the mandates of the ACA. Furthermore, although insurance providers may state that they cover all pregnancies, including a surrogacy pregnancy, some providers may still try to hold other parties liable, such as the intended parents, for the maternity care costs, including pregnancy care and all costs associated with the delivery. For these reasons, before couples proceed with a surrogate, it is crucial that a Reproductive Law attorney is consulted to ensure that couples will not be liable for the costs of their surrogacy pregnancy.