... Because Everyone Can Build a Family

Important Call to Action: Educate those in the Federal Government who are Writing the Obamacare Health Care Regulations that Could Have an Impact on Maternity Health Insurance Coverage for Gestational Surrogates

January 1, 2014 is the date when the second half of the Patient Protection and Affordable Care Act, affectionately called Obamacare takes effect.  (Thank you, Mr. President, for giving us permission to call it Obamacare.  It is otherwise a mouthful!)

A key provision of Obamacare for prospective parents is the provision that will prevent an insurance company from excluding a woman from obtaining maternity coverage or from requiring her to wait before her maternity coverage starts.

But (why is there always a but?), what is not yet known is whether surrogacy pregnancies will be included in this mandate.  For the thousands of prospective parents for whom surrogacy is the only means for building a family each year – women born without a uterus, women who have other medical issues that prevent them from carrying a pregnancy to term and, notably, all gay men who want to have children by procreation – excluding women who are surrogates would be devastating.

Right now, somewhere inside the Obama Administration, regulations are being drafted that will control the terms of the maternity care policy that will take effect in January for the 26 states whose Healthcare Exchanges will be run by the Federal Government.[1]  The word on the street is that those regulations will be out by July.  Some suspect that each state will have a policy that is patterned after the most popular independent insurance policy that individuals currently purchase in that state.

In some states this could be good news for surrogacy, because the current popular individual policy has no exclusion for pregnancies via surrogacy.  In other states, however, surrogacy will not fare so well.   Even those surrogates who currently have maternity coverage could lose coverage for a surrogacy pregnancy – mid-pregnancy – because, under Obamacare, nothing is grandfathered that began after March 23, 2010.  This means that a surrogate who recently obtained insurance with no surrogacy exclusion, but lives in the “wrong” state, could suddenly find herself without healthcare coverage for the rest of her pregnancy and the delivery because of a surrogacy exclusion effective 1/1/2014.  Obviously, that could be disastrous for her and for the intended parents, who would be liable for her medical bills.

When I was in the Federal Government — as General Counsel of the FCC — we wanted to hear from the industry before we adopted regulations that could have a real-life impact on real-life people.  We did not want to engage in “ivory tower rulemaking.”  To be sure, everything had to be documented in the record. But our goal was to maximize the public interest.

That should be the goal here.  This Administration has made it abundantly clear where it stands on family, and its support for non-traditional families.  Even before President Obama became a supporter of same-sex marriage, he supported adoption by gay parents.  In 2010, President Obama wrote to Family Equality Council and stated:

“We have to do more to support and strengthen LGBT families. Because equality in relationship, family and adoption rights is not some abstract principle…we have to extend equal treatment in our family and adoption laws. That’s why I’ll be a president that stands up for American families – all of them.”

There is no reason to think that the President would be any less supportive of surrogacy as a means to achieving parenthood. Gay men should have the same options as other prospective parents for becoming parents:  become an adoptive parent or become genetic parent.  Gay men, however, cannot become genetic parents without the assistance of a surrogate to carry the bio dad’s child, created through in vitro fertilization in the lab and then transferred to a gestational carrier.  Surrogacy needs to be a viable option, and that means the surrogate needs to have health insurance coverage during her pregnancy.  This is a strong public policy reason, therefore, why the federal regulations should include and not exclude surrogacy pregnancies from coverage.

Similarly, women who cannot carry a baby – women who have scar tissue in their uterus, who were born without a uterus, or who have other medical reasons why they cannot carry a baby to term – should have the same option as anyone else to have a baby, albeit by surrogacy.  Adoption is a good option for many.  It is how I built my family.  But to think that it is an easy alternative is naïve.  I know many, many prospective parents who have suffered through failed adoptions or who are still waiting for adoption referrals.  One out of six women suffers from infertility, and many of those women need the assistance of a gestational surrogate to have a baby.  The President and the First Lady have made it abundantly clear that they are strong supporters of family.  First, however, one must be able to make a family. This is yet another reason why the federal regulations should include and not exclude surrogacy pregnancies.

To make sure that this result ensues, I call on all the groups who represent those who would be most affected – the prospective parents, for example —  to determine who is preparing these regulations in the government, and give them the information required to educate them.   These include groups such as RESOLVE, Family Equality Council, the Human Rights Campaign, ASRM, SART and the experts in surrogacy insurance such as ArtRisk. I volunteer my services to be part of such an effort, and I am sure that I will be able to enlist some other parents and surrogates who will be willing to go tell their personal stories as well.  But Creative Family Connections cannot take this on alone; we cannot be the sole voice.

The government personnel who are drafting the regulations need to understand exactly why surrogacy should be included in the insurance exchange – and, conversely, what the adverse consequences of excluding surrogacy from the maternity mandate will be.

I am not talking about “lobbying” in a traditional sense.  I am talking about educating.  The public servants who are writing the rules deserve to know what the impact on the public interest would be before they write the rules.  Without open eyes, we risk unintended consequences that benefit no one… and can harm many.  Let’s open the eyes of those who are writing these regulations.

Diane S. Hinson, June 6, 2013, just outside Washington, DC