What’s SB279 and how does it apply to surrogacy in New Hampshire?

SB279 is a law that takes effect on January 1, 2020. This new law can be found at New Hampshire RSA 417-F. Beginning on January 1st, most employer-provided health insurance plans must cover infertility diagnosis, fertility treatment, and fertility preservation. So intended mothers facing a cancer diagnosis will have insurance coverage to freeze their eggs for later use with a surrogate. Intended mothers also have coverage for making the embryos that will be used with a gestational surrogate. This includes making embryos from donor eggs.

What’s not covered by the new infertility insurance law in New Hampshire?

Embryo transfers to gestational carriers are not covered under the intended mother’s health insurance. The law does not require coverage of any part of the transfer process such as screening of the gestational carrier, medications for the gestational carrier, the embryo transfer procedure itself, or the follow-up blood work and ultrasounds. Two pieces of good news here: First, insurance companies can choose to optionally cover these procedures. And, second, the gestational carrier’s own insurance might cover the early pregnancy blood work and ultrasounds, so be sure to investigate that before paying cash for those appointments.

What types of health plans have to follow the new infertility insurance law?

The law, NH RSA 417-F, applies to group insurance plans only. This would be the type of insurance you get through your employer. So the law does not apply to individual health insurance plans, such as health insurance purchased from the marketplace. The reason is that the individual insurance market is very fragile at this time and it would be difficult to implement this type of mandate on the individual market. SHOP plans and extended transition plans are also not covered by the law. Finally, the law does not apply to “self-funded” plans obtained through an employer. The reason is that federal laws do not permit the state of New Hampshire to impose requirements upon self-funded plans.

How do I know if I have a self-funded health plan at work?

Ask Human Resources. Self-funded plans are particularly common among large employers. If it turns out your health plan is self-funded, then ask HR to match the benefits offered by the state insurance law. Self-funded employers make their own decisions on what is covered under their health plan. So they can choose to include infertility-related benefits. Fertility Within Reach is a non-profit with some great resources on how to approach your employer. In fact, Fertility Within Reach was a partner with RESOLVE New England in promoting the passage of SB279 into law.

I confirmed that I’m entitled to insurance coverage for making embryos via IVF with an egg donor. We will later transfer these embryos to a gestational carrier. What kinds of expenses will be covered by insurance? And what will I have to pay out-of-pocket?

The insurance coverage is for medical expenses only. This includes your donor’s medical costs associated with screening, medications, monitoring, and egg retrieval. Following the retrieval, medical expenses associated with fertilization, embryo culture, and cryopreservation would be covered. Any non-medical costs are your responsibility. This includes the donor agency fee, the donor’s compensation, legal costs for your donor contract, and
travel expenses for the donor. In addition, expect to pay for storage of your embryos. Some insurance policies or IVF clinics might cover short-term storage of your embryos at the IVF clinic, but expect to pay out-of-pocket for long-term storage. Also expect to pay out-of-pocket for transfer related costs if you are using a surrogate.

We are a gay couple pursuing surrogacy. Does the new infertility insurance law apply to us?

The law applies to both male and female infertility. Gay men can be infertile just the same as straight men. In fact, 1/3 of all infertility is due to male factors. Low sperm count, poor motility, chromosomal issues, and other types of male infertility can be found among gay men. When you go in for your consult with your RE (the reproductive endocrinologist), you will find out if you (or your husband) have male infertility. With a diagnosis of male infertility, you are entitled to benefits under the law to treat your infertility. Depending on your diagnosis, the appropriate treatment may be making embryos via IVF. One thing to be aware of is that you will be responsible for the costs of obtaining eggs, whether you use a known or anonymous egg donor.

I think I’m entitled to receive insurance coverage for making embryos via IVF, but the insurance company has denied the request to preapprove my cycle. What can I do?

Your options include an insurance appeal. There are time limits for insurance appeals, so don’t delay because you could miss important deadlines. Contact me to learn more about pursuing an insurance appeal for a denial of infertility benefits.

I lost my uterus following a hemorrhage after delivering my first child. My OB/GYN saved my life by removing my uterus. Our only option to have another child is surrogacy–thankfully I still have both of my ovaries. My insurance company is refusing to pay for IVF to retrieve my eggs, claiming that I was “voluntarily sterilized”. Is insurance supposed to cover me since my sterilizations wasn’t really “voluntary”?

This one’s a little more complicated. The law does exclude coverage for “reversal of voluntary sterilization” but that doesn’t seem to quite fit your situation, does it? I recommend we talk more about this over the phone. Contact me to schedule a time for a free phone consult.

What about prenatal care for my surrogate? Will this be covered by health insurance?

Prenatal care, or maternity care, benefits are provided by many insurance companies in New Hampshire for surrogate pregnancies. This is not part of the infertility benefits covered by RSA 417-G. Instead, maternity care benefits would come from the surrogate’s own health insurance. The best way to find out if maternity benefits are available is through a specialized surrogacy insurance review. As part of my services to surrogacy clients, I will help you arrange for this type of review.

I’m a single intended parent planning to pursue surrogacy? Does this insurance law help me?

If you have a medical cause of infertility (which can happen in either men or women), you are entitled to benefits under this law.

I live in Maine, but work across the border in New Hampshire. Do the insurance requirements apply to me?

If your employer has a New Hampshire insurance policy, then the requirements of the law apply to you, even if you don’t live in New Hampshire. Companies often buy insurance through their headquarters, so your plan may be based out of a different state entirely. The best way to find out is to ask Human Resources.

My husband and I have 5 PGS-tested frozen embryos in storage, while we get the funds together to pursue surrogacy in the next couple of years. Are our embryo storage costs covered under the bill?

Unfortunately, no. However, your insurance company may voluntarily choose to pay for storage even without the requirement in place.

I saw a news story about a woman who donated her uterus to another woman, and the recipient became pregnant. Are uterus transplants covered under this bill?

No. At this time, uterus transplants are experimental. Insurance companies don’t have to pay for experimental treatments. This exclusion is not unique to infertility–most experimental treatments, in all areas of medicine, are not covered by insurance.

Do you have more questions about surrogacy and health insurance in New Hampshire? Reach out to me to schedule a free consult.

Do you have non-surrogacy related questions about the infertility insurance law? Check out these FAQs over at the website of New Hampshire Fertility Law.

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All parties to a surrogacy arrangement need to understand that death is an inherent risk of surrogacy.  Most importantly, the surrogate needs to understand, and be willing to accept the risk, that she might die as a result of carrying someone else’s baby.  By doing this favor for someone else, she is putting her own life at risk, and needs to consider the potential consequences to her own family.  It’s not fun to think about that, is it?  But only by thinking about this can a potential surrogate make the informed decision to proceed with the arrangement.

So, how can these issues be addressed in a surrogacy contract?

Typically, contracts require that the surrogate and her husband, if she has one, accept the risk of her death, and agree to release the Intended Parents (IPs) from liability if she dies.  The IPs may have to purchase life insurance for the surrogate, to provide financial protection to her family.  The parties will all have to agree on whether, in the event the surrogate becomes permanently unconscious (“brain dead”), the surrogate should be placed on life support for the sole purpose of continuing the pregnancy.  And the surrogate will be entitled to make medical decisions relative to the pregnancy, such as termination, should her own life be at risk due to the pregnancy.   These are just some of the issues we consider in surrogacy agreements.

A word of caution: drafting contracts that properly address these issues is not a do-it-yourself project.  You need to work with an attorney who is familiar with this highly technical and complex area of law because it’s just too easy to mess these things up.

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