Surrogacy and Medi-Cal Insurance

This past week I received a telephone call from a surrogate who wanted to know if it was legal for her to use her insurance for her surrogacy. She and the Intended Parent were using a contract that he found on the Internet. The surrogate seemed to think this was okay because he is attending law school so he is an attorney. I explained to her that until he passed the Bar and obtains his license, he is not an attorney. "Oh" and then "well" was her response.

She then told me that her husband is in construction so they are on Medi-Cal (the state of California's low-income insurance plan) so they are going to have two contracts. One that states that the Surrogate is not receiving a fee, which they will send to Medi-Cal as proof that she is doing the surrogacy for no fee and then an amendment that states the fees she will be receiving. She then asked "Is that legal?"

"No. That is insurance fraud and if the insurance company that administers your plan finds out you and your family will lose your insurance, at the very least." I then told her to hire an attorney to protect herself and that if she wants to hire me I would charge more than my going rate because a contract found off the Internet is going to require a lot of work. I also told her to not use her Medi-Cal insurance and that the Intended Parent needs to purchase her insurance to cover the surrogate pregnancy. Frankly, I think she somehow expected me to say something different.

Insurance companies are very, very serious about insurance fraud, especially regarding surrogacy. Medi-Cal insurance does not usually have a surrogacy exclusion so as long as the surrogacy is truly altruistic and there is no compensation paid to the surrogate and the insurance does not exclude a surrogate pregnancy, it is appropriate to use it. But, absolutely not in this surrogate's case. I wish her the best of luck as I'm afraid she's going to need it.

An Update on Embryo Donation

What do you do with your embryos? It's a dilemma that many couples and individuals who have gone through IVF treatment face, as there is an estimated 400,000 to 500,000 cryopreserved embryos in the United States alone. You are done having your own children and you are not sure what to do with the embryos you have cryopreserved at your IVF center. As the years go on, you are charged more each year to maintain them. It is a very real dilemma for a lot of people.

Embryo donation is a viable option and it has received more press with the passage of the "Option of Adoption Act," which will take effect July 1, 2009 in the state of Georgia. Under the new law, "A child born to a recipient intended parent as the result of embryo relinquishment ... shall be presumed to be the legal child of the recipient intended parent," the new law states. HB 388 does not require the recipients to be a married heterosexual couple, which I was afraid of, but they do require that all parties sign an agreement, which is what I do for my embryo donation clients.

Most people believe that the difference between an embryo adoption and a donation is that the adoption is open and the donation is anonymous, which is not true. I have drafted or reviewed embryo donation contracts where the recipient and donor are known to each other and have worked on contracts where they are not. It is all up to the parties involved as to how that is handled.

With the economy still an issue, there are couples that need a third party to help them create their family, but they simply cannot afford it. And, there are thousands of couples with excess embryos cryopreserved for years. It's a very personal decision, but for those who decide to donate, the potential for joy is endless.