Surrogacy and Insurance: The Call for Statutory Reform in Ohio

Article excerpt

I. 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. …

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