Surrogacy and insurance: the call for statutory reform in Ohio.

• Author: Swoveland, Sasha M.

1. INTRODUCTION II. DEFINING AND UNDERSTANDING THE SURROGACY PROCESS A. Defining Surrogacy B. Cost of Getting Pregnant III. SURROGATES NEED INSURANCE A. Surrogates Need Insurance to Cover the Cost Associated with Pregnancy and Delivery 1. Cost of an Uncomplicated Pregnancy and Delivery 2. Cost of Complicated Pregnancy and Delivery 3. Surrogate's Life Postpartum B. Mandating Equality: the Pregnancy Discrimination Act of 1978 and the Newborns' and Mothers' Health Protection Act of 1996 1. Pregnancy Discrimination Act 2. Newborns' and Mothers' Health Protection Act C. Existing Contract Remedies to Recover Associated Costs Are Insufficient 1. Filing Suit Against the Insurer D. Filing Suit Against the Intended Parents 1. International Surrogacy 2. Surrogacy in the States IV. SURROGACY IN OHIO A. Governing Ohio Case Law B. Governing Ohio Regulations C. Governing Ohio Statutes V. MODEL SURROGACY STATUTE A. The Procedural Process B. Evaluation of the Provisions VI. CONCLUSION I. INTRODUCTION

   Carrie Mathews of Windsor, Colorado, became a surrogate to provide another couple with the gift of child. (1) Mathews began her journey by contacting the National Adoption and Surrogacy Center, which introduced her to several families looking for a surrogate. (2) After reviewing various profiles, Mathews opted to become the surrogate mother for the Bakos, an Austrian couple in their fifties, who had been trying to have a child for twenty years. (3) Instantly, Mathews and the Bakos formed an adoring relationship. (4)

   Having already given birth to three children, Mathews had no reason to believe that serious complications would ensue during her pregnancy. (5) Prior to undergoing in vitro fertilization, Mathews and the Bakos signed a contract that outlined payment for different situations and complications that could arise during pregnancy. (6) Under this contract, Mathews would receive $25,000 to carry the child. (7) The Bakos would place $2,000 per month in an escrow account and Mathews would have access to the money upon giving birth. (8)

   In vitro fertilization was successful, and Mathews gave birth to twins. (9) Despite her belief that the surrogate pregnancy would go smoothly, she encountered significant complications. (10) Mathews became extremely sick, experienced severe swelling, developed preeclampsia (11) and HELLP syndrome. (12) After giving birth, Mathews experienced additional health problems and had to be rushed into an emergency operation to stop internal bleeding. (13) Mathews explained that "while I was in the operating room, I died and had to be resuscitated." (14) After giving birth, she remained hospitalized for twenty days. (15) In the meantime, the Bakos returned to Austria with their twins. (16) Mathews now owed more than $217,000 in medical expenses related to the birth of the Bakos' twins. (17)

   Mathews's story was so remarkable that an unaffiliated surrogate advocate commented on it in the media. (18) The program administrator for the Center for Surrogate Parenting (CSP) (19) explained that under CSP's policy, intended parents must enroll in an insurance program, and surrogate mothers must have medical insurance to cover the pregnancy related costs while she is the patient. (20) Although Mathews had insurance, her policy excluded maternity benefits for surrogate mothers. (21)

   Though CSP has stricter internal policies regarding insurance coverage to prevent situations like the one Mathews is facing, meeting the insurance requirement can be difficult. (22) Some insurance companies exclude coverage of surrogate mothers though the insurer may cover pregnancy services generally. (23) This practice occurs because, despite the valuable services that a surrogate provides to couples, surrogacy remains largely unregulated. (24) Therefore, it is important that parties diligently select an agency and execute a thorough surrogacy contract. (25)

   While Mathews's case may be an extreme example, it is far too common for surrogate related pregnancies to be excluded from health care insurance. April is currently several months pregnant as a gestational surrogate. (26) When April first considered becoming a surrogate, her insurance company informed her that the pregnancy and birth would be covered; however, her insurance company now claims that no part of the pregnancy will be covered. (27) Michael and his partner have a surrogacy arrangement with a surrogate from Ohio, who has a policy with Blue Cross. (28) Blue Cross told Michael and his surrogate that her policy will not cover anything related to the surrogacy. (29) Rachel has a policy through United Healthcare and her policy excludes "surrogate parenting." (30) In 2008, Tera (31) was covered under Medical Mutual of Ohio and the insurer covered surrogacy related services, but now her policy excludes surrogacy. (32) other cases, like these, have likely not caught the attention of the media because many surrogate mothers do not realize that they may have a cause of action against an insurer or the intended parents. (33) Surrogates and surrogate advocates accept the premise that it is permissible for insurers to exclude surrogates from pregnancy related services. (34)

   This Note examines the practice of excluding maternity services for surrogate mothers under insurance plans that cover maternity services. This Note also introduces two different surrogate arrangements and illustrates the different familial situations that may necessitate the use of a surrogate. Part II defines surrogacy and offers a general overview of the surrogacy process. Part III demonstrates that surrogates need insurance for pregnancy related services. It also argues that the exclusion of coverage for surrogates is pregnancy discrimination. Part IV explains why current legal remedies are insufficient to make surrogates whole. Part V analyzes the state of surrogacy by examining Ohio cases, regulations, and statutes. Part VI provides a model statute that the Ohio General Assembly should adopt.

2. DEFINING AND UNDERSTANDING THE SURROGACY PROCESS

   Like many couples, the Bakos' decision to become parents was frustrated by their inability to conceive. (35) However, they are not alone; approximately 2.5 million American couples are involuntarily infertile. (36) In addition to those who are infertile, there are couples who have issues carrying a fetus to term. (37) Faced with serious infertility issues, couples are left with only a few options: come to terms with childlessness, adopt, or employ an alternative reproductive method. (38)

   Coping with childlessness is far easier said than done. Psychologically, parenthood is a major transition into adulthood for both sexes. (39) The stress of wanting a child is associated with a variety of emotions such as anger, depression, anxiety, and feelings of worthlessness. (40) Couples also experience social stigma, a sense of loss, and diminished self-esteem due to their infertility. (41) The option to pursue adoption is also a path that couples are sometimes reluctant to take. (42) This could be because of the shortage of adoptable children or the three to seven year waiting period associated with the process. (43)

   One of the fastest growing alternative reproductive methods is the use of a surrogate. (44) Surrogacy is often selected as an alternative reproductive method because the intentional parents can have an established genetic link to their child. (45) Statistics are hard to come by because no government agency or private group tracks surrogate births; however, estimates range from a few hundred to a few thousand births per year. (46)

   1. Defining Surrogacy

      In a surrogate arrangement, a couple secures a third-party female to bear their child. (47) with the assistance of the third-party female, the couple has two options: pursue a traditional surrogacy arrangement or pursue a gestational surrogacy arrangement. (48)

      Under the traditional model, the surrogate mother provides her own egg to be fertilized by either the intended father (49) or a sperm donor. (50) The process of fertilization under this model is referred to as artificial insemination. (51) under this method, the intended mother and child are not genetically related. (52) The intended mother must adopt the child when it is born to be recognized as its legal parent. (53)

      under the second model, the gestational surrogacy arrangement, the surrogate is impregnated with an egg and sperm to which she is not genetically related. (54) under this model, the intended parents provide the genetically related egg. (55) To produce the egg, the intended parents undergo in vitro fertilization (IVF), which stimulates the intended mother's ovaries to produce eggs. (56) To complete the process, the mature eggs are harvested from the intended mother, fertilized by the intended father or sperm donor in a Petri dish, and then transferred into the uterus of the gestational surrogate. (57) unlike the traditional model, the intended mother is genetically related to the child. (58)

      In contrast to other alternative reproductive methods, some surrogacy arrangements allow alternative families to produce children who are genetically related to the intended parents. (59) with the use of a surrogate, couples with infertility issues, same sex couples, and women who are unable to carry a child to term can raise genetically related children. (60)

      Once the intended parents secure a third-party female, their respective legal representatives begin drafting the surrogacy contract. (61) When parties enter into a surrogacy arrangement, they should always execute written, detailed, and independently counseled agreements that clearly document all parties' intentions and expectations of the arrangement. (62) Since the laws governing surrogacy are unsettled and evolving, "the contract requires drafters to anticipate and address various theoretical possibilities not necessarily known to them at the signing of the agreement." (63) Like any other...