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Surrogacy Insurance Coverage in 2014 By Yifat Shaltiel (February 2014)

Posted by Yifat Shaltiel on February 28, 2014  /   Posted in News & Events

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Surrogacy Insurance Coverage in 2014

By Yifat Shaltiel, Esq.
February 28, 2014

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.

Egg Donation Takes Legal Planning By Yifat Shaltiel (September 2013)

Posted by Yifat Shaltiel on September 27, 2013  /   Posted in News & Events

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Egg Donation Takes Legal Planning

By Yifat Shaltiel, Esq.
September 27, 2013

If you have made the decision to grow your family using egg donation, you are not alone. According to the Center for Disease Control (CDC), approximately 12% of fertility patients use donor eggs and embryos.

When it comes to choosing an egg donor, you may wish to proceed with an individual known to you, such as a relative or a friend, rather than an anonymous egg donor. If you choose to grow your family using a known egg donor, regardless of whether it is your relative or a friend, it is important that you enter into a written egg donor contract between you and the egg donor.  Having a written contract will ensure that you and your baby will be legally protected, that the egg donor gives up any right to children born from her eggs, and that everyone’s intentions and expectations are agreed to in writing. While everyone may get along very well right now, relationships between family and friends can become difficult and unique if a problem arises or if there are disagreements on issues that were not addressed prior to the egg donation procedure. This is why when it comes to egg donation, proper legal planning is crucial. To do this you will want to seek the assistance of an attorney who specializes in reproductive law.

There are a lot of issues that you will want to discuss with your reproductive law attorney and address in your egg donor contract. For example, one of the issues that you will want to consider in your contract is the risk that the egg donor takes throughout the egg donation process. It is very important that the egg donor understand that there are medical risks that accompany the egg donation process.  Perhaps a situation may occur where after the egg retrieval, or even years down the road, the egg donor develops an illness that can be linked to egg donation. It is important that these concerns are explained to the egg donor, that she fully understands the risks, and that you are relieved from liability in such situations.

To further protect yourself, you may want to look into obtaining an egg donor insurance policy.  Such a policy can protect against costs related to unforeseen events which may occur two or three months after the egg retrieval, or even immediately after the egg retrieval if the egg donor’s medical insurance refuses to cover such medical costs.

You will also want to clarify whether the donor will be compensated for the medical risk that she is taking in donating her eggs.  It is important to note that if you do compensate the egg donor for the risk that she is undertaking, she will be entitled to that compensation regardless of the outcome of the egg retrieval.  If she is compensated, then you will need to establish when compensation will be provided. Will she receive compensation the day of the retrieval? Will she receive her compensation in installment payments? Will she receive compensation a week after the retrieval? You will want to decide and include in your contract if she will be reimbursed for lost wages, daycare expenses, transportation expenses, and other expenses. You will also need to understand and state the tax implications of this compensation and who will be responsible for the payment of such taxes. Your attorney and a certified accountant will assist you in answering important questions, such as whether the compensated egg donor must receive a Form 1099 to use in her own tax return preparation, and whether the egg donor fees and expenses would be an allowable medical care expense under a flexible spending account.

While it is important to proceed with egg donation with the hopes of achieving a pregnancy and positive thinking, it is equally important that all issues relating to potential unused embryos resulting from the donor eggs are agreed upon prior to commencing the process. If there are embryos that will not be used by the intended parents, the intended parents will have several choices related to their disposition.  These include (1) discarding the embryos, (2) donating the embryos to medical research, or (3) donating the embryos to other recipients. It is important that the donor understand these choices and consent to the various methods of disposition.  For example, the donor may not consent to the embryos being donated to a third party.  It may not be the donor’s intention to donate her eggs to more than one recipient family.  Or the donor, based on her religious beliefs, may not consent to destroying or donating the embryos to medical research. It is critical that the donor understands all of these options, and that any decision relating to the disposition of unused embryos will solely be the decision of the intended parents.

Other issues that will need to be addressed are privacy and the degree of the future contact that the egg donor will have with any children born from her eggs. The donor must understand that she gives up any legal rights that she may have to any children born from her donated eggs. There are many questions related to this that you will want considered in your contract. For example, how involved will the donor be in the child’s life, if involved at all? Do you want the information that you used an egg donor to grow your family to remain private, or will you share this information with other friends and family members? Do you feel comfortable with the donor sharing this information on various social media outlets, such as Facebook? Will the child know that the egg donor’s children are his or her siblings? Will the egg donor be donating her eggs to other recipients? Will you be able to maintain information about all of the egg donor recipients or participate in a sibling registry? It is crucial that these questions are answered and agreed to in writing between you and the donor before you proceed with the egg donation process.

For these reasons legal planning is imperative if you are growing your family using an egg donor. An attorney specializing in reproductive law can assist you in thinking about the issues mentioned here, as well as other issues that should be included in your egg donor contract in order to protect your growing family.

Are You My Mother? By Yifat Shaltiel (August 2013)

Posted by Yifat Shaltiel on August 02, 2013  /   Posted in News & Events

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Are You My Mother?

By Yifat Shaltiel, Esq.
August 2, 2013

Choosing to pursue your dream of building a family through surrogacy can be a long journey.  To ensure a successful journey you will need to seek both good medical care and the assistance of a qualified attorney who specializes in reproductive law.

The first step is to find the right surrogate to build your family. In this regard, the residence of your potential surrogate is crucial.  Surrogacy laws vary greatly from state to state. The differences in these laws affect whether you will be considered the legal parent when your child is born through a surrogacy arrangement. Depending on the applicable state law, you may not always be considered the legal mother of your child, if your child is born from a gestational surrogate, even though you are genetically related to your child. In fact, in some states the law will recognize the surrogate to be the legal mother.

For example, New York State courts will not recognize the intended mother as the legal mother.  This is true even when her own eggs are used and the child born is genetically related to her.  What does this mean?  Well, the gestational surrogate, who is not genetically related to the child, is considered the legal mother. Therefore the biological/intended mother must take legal steps to be recognized as the legal mother, and can only do so with the consent of the gestational surrogate.

What about the father? This can be complicated too.  If your surrogate is in New York and is married, then New York State will recognize the surrogate’s husband as the legal father, leaving the biological/intended father with additional legal steps to ensure that he is recognized as the legal father.

To further complicate matters, New York State has declared that compensating a gestational surrogate is illegal.  So, if your gestational surrogate resides in New York State, you will need to take some precautions and make sure that you do not compensate her for any portion of the surrogacy arrangement. She can only serve as a “compassionate surrogate” who cannot be paid for her services.

The good news is that you can still have a gestational surrogate that resides in New York, but should only proceed with the assistance of legal experts, in order to ensure that your rights will be protected.  More good news is that in many states compensated surrogacy is allowed, and in many of these states the biological parents will be legally recognized.   What does this mean for intended parents who reside in New York? Intended parents may continue to reside in New York, and still proceed with a surrogate who resides outside the state of New York, in a more surrogate friendly state. Of course such arrangements can be best handled in consultation with an attorney who specializes in reproductive law.

Fertility Law At a Glance By Yifat Shaltiel (April 2013)

Posted by Yifat Shaltiel on April 22, 2013  /   Posted in News & Events

Media & Events

Fertility Law At a Glance

By Yifat Shaltiel, Esq.
April 22, 2013

If you have turned to a gestational surrogate, or perhaps turning to egg donation, sperm donation, or embryo donation for assistance in building and growing your family, chances are that you will need some legal advice.

Many families are turning to assisted reproductive technology to grow their families. In fact, it is estimated that today one in every six couples are affected by infertility. The good news is that in today’s medical world, there are many options when it comes to building your family. But in addition to having a good fertility clinic and medical care on your side, you will also need to consult with an attorney who specializes in reproductive law to ensure that your rights and intentions throughout this process are protected.

For example, if you are considering surrogacy, there are numerous items that you will want to evaluate. For one, all state laws regarding compensated surrogacy are not created equal! There are advantages and disadvantages to obtaining a surrogate, but they vary from state to state and are also case specific. In fact, compensated surrogacy in some states is illegal and even criminalized, so having an attorney with knowledge of the various surrogacy state laws is essential.

When it comes to locating a surrogate, your attorney can work together with a reputable surrogacy agency that can match you to a surrogate. However, you may also choose to find a surrogate individually with the assistance of your attorney. Since an agency’s matching fees can be costly (and usually start at approximately $20,000) some intended parents choose to work with their attorney and locate a gestational surrogate individually. Chances are that your attorney might already have a list of surrogates for you to review, or your attorney will be able to assist you in locating a surrogate. Your attorney will also be able to alleviate any issues of confidentiality that might exist. For example, a surrogate may want to keep her identifying information confidential, or you might want to keep all of your information confidential. Having an attorney facilitate the discussions between the parties will make everyone feel more comfortable and secure with the process.

Once you have successfully located and chosen a surrogate, your attorney will ensure that there is a sound legal contract in place that fully outlines the meeting of the minds between all of the parties, and protects and preserves your intentions. It is very important that the surrogate understands your intentions and agrees to comply with them. For example, you will want to ensure that your surrogate will follow your wishes when it comes to making medical decisions regarding your unborn child, such as whether or not there will be a reduction in the case of multiples, or whether or not a pregnancy will be terminated if there are any severe fetal abnormalities. You will want to ensure that the surrogate you choose understands, respects, and agrees to follow your wishes and intentions, whatever they may be, in these types of situations. So having a contract that clearly lays out the meeting of the minds between all of the parties is crucial.

The to-do list when considering various assisted reproductive technology options is lengthy and overwhelming. Having the right professional attorney who specializes in reproductive law on your side will alleviate this burden, guide you through the process, and ensure that your rights and intentions are protected and preserved.

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