If the ACA Goes Away, Do We All Need To Move to Canada (For Surrogacy)?

Goodbye Obamacare, hello maple-leaf onesies?

Canada baby Canadian kidThe United States has been a great place for surrogacy for a number of reasons: world-class fertility doctors, states with legally supportive laws and judiciaries, and a large population of healthy women interested in giving the ultimate gift — helping a family have a child.

One area, however, that has already been a challenge looks like it’s to get much worse: health insurance.

As you can imagine, there are a number of significant medical costs when it comes to having a child through surrogacy. It can be broken down into three parts:

  1. IVF/Getting Pregnant. As you probably remember from your biology class, eggs and sperm are combined to form embryos. Retrieving eggs is complicated and expensive; sperm retrieval is, uh, easier.

Once made, embryos are sent for genetic testing. But regardless of the level of testing, sometimes there aren’t enough viable eggs to fertilize. Or alternatively, none of the embryos come out healthy and viable. That means starting all over.

Eventually, if at least one embryo looks good, it can be transferred to a surrogate. The surrogate has been poked and prodded to ensure maximum health, and by this point she is on very expensive injectable drugs to ensure her body is an optimal state to welcome a pregnancy. With a little luck, the embryo sticks and there is a pregnancy. If not, you start over, once again.

How much of this is covered by health insurance? Most of the time, zero point zero dollars. While a handful of states require insurance providers to cover certain infertility-related medical costs, and a few awesome companies provide health insurance that helps with these medical procedures, most intended parents have no choice but to pay all of these costs out-of-pocket.

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  1. Maternity/Birth. Insurance coverage for maternity and birth costs is rarely covered by the intended parents’ insurance. Instead, the surrogate herself must have insurance covering that care. But more and more health insurance policies are excluding maternity and birth costs for a woman’s pregnancy if it is the result of surrogacy. And, most relevant to today’s political environment, plans issued through the Affordable Care Act exchanges have been covering it. Women serving as surrogates without adequate health insurance coverage have been able to go on the ACA market during open enrollment to obtain a policy that would cover their maternity care costs during a surrogacy pregnancy.

To address the politics of the matter in the briefest of fashions, I’ll say that some believe that taxpayers and those paying into an insurance pool should not be responsible for the maternity costs of a surrogate who is likely receiving compensation for her pregnancy. On the other hand, the infertile intended parents would have received that medical coverage if they were able to get pregnant on their own. So by denying their surrogate medical coverage during the pregnancy, the intended parents’ burden to have a child is further financially compounded.

  1. Newborn Baby. Obviously, most new parents want to have health insurance coverage for the baby once the little bundle of joy arrives. At this point, we flip back to the intended parents’ insurance. It is normally not a problem to add a policyholder’s newborn child to the policy, except… if the intended parents are from another country with no U.S. insurance. Newborn U.S. insurance policies do not come cheap. Especially if a surrogate is carrying twins. A long NICU stay or a doctor’s use of complicated medical procedures can quickly push medical costs into the hundreds of thousands, or even the millions.

Goodbye Obamacare, Hello Maple-Leaf Onesies? The elimination of the Affordable Care Act is likely to further squeeze that second category of medical coverage. The consequence may be to significantly limit the pool of women who can be surrogates without an intended parent having to pay her maternity costs out-of-pocket, or alternatively, purchase a costly insurance policy specifically for the pregnancy. Virginia Hart, the CEO of ART Risk Financial and Insurance Solutions, notes that “due to the ever changing insurance landscape, it is always important to have an insurance review by an insurance professional and have a contingency plan. And if you are delivering in 2018, I wouldn’t count on anything.”

While our neighbors to the north prohibit “compensated” surrogacy, Canada allows reasonable reimbursements for surrogates (which can include reimbursement for their time, and can quickly add up to $20,000+). And guess what else they have? Hockey. And beer. And, oh yeah, socialized medicine. So while it may not be time to pack your bags yet, the end of Obamacare in the U.S. could push more hopeful parents to look more closely at other options.

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Ellen TrachmanEllen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, adoption, and estate planning, and Co-Director of Colorado Surrogacy, LLC, a surrogacy matching and support agency. You can reach her at babies@abovethelaw.com.