The demand proffers two reasons for its demand. First, Blue Cross argues that because “surrogacy is not listed as a covered service”, it is not covered by the policy. Second, Blue Cross concludes that as surrogacy pregnancy is not medically necessary, they have no legal obligation to pay.

There have been more than a few lawsuits where Blue Cross has argued services were not medically necessary. One case required medically necessary services to be consistent with the diagnosis and in accordance with the standards of good medical practice. Another case required coverage when the services could not have been omitted without adversely affecting the patient's condition.

I think you can see what is going on here. Blue Cross/Blue Shield is trying sleight of hand by shifting your view from obstetrics, the procedure, to gestational surrogacy, the precursor to the obstetric event. Why? This gets them around having to explain why surrogacy related obstetrics is not listed in the EXCLUSIONS section of the of the policy.

Medical coverage is a complex area of the law. There are however, two basic tenants to policy interpretation. First, the coverage side of the policy will construed broadly in the patient's favor. Second, the exclusion side of the policy will construed narrowly against the insurance company.

So how does this demand play out? A court will ignore that the obstetric services arose from a gestational surrogacy. Obstetric services is listed in the medical insurance policy as a covered item but is not modified or limited by the exclusion language of the policy. The bad part of here is that the carriers will be faced with no legal representation for these activities. Agency owners, take care of your carriers!

Everywhere you look these days, we hear about "Octomom". Whether on television, internet or print, the authors point out the age old governmental regulation vs. self regulation argument. When we speak about regulation we have to specify a frame of reference. Popular media's frame of reference suggests society failed to oversee the medical services provided to one family by one practitioner.

The Assisted Reproduction medical practice is an equation comprised of resource allocation, anatomical and physiological variables and ethics with live births being the end product. The frame of reference for the typical Assisted Reproduction practitioner is an unfettered ability to apply all measures of skill and art to that equation short of causing the patient harm. When the practitioner's frame of reference is tilted by outside influences, the end result is an inefficient use of resources and an unrealistically skewing of anatomical and physiological variables with a lowered percentage chance of a live birth.

We cannot forget that when a medical practice equation is intruded upon by regulation, the patient's constitutional right to reproductive freedom is trampled. From the Infertile Patient's frame of reference, this means a reduced chance of a live birth.

And that, is unconscionable.

Did you know that if the U.S. Supreme Court reverses Roe v. Wade, Louisiana, Mississippi, and North and South Dakota have trigger laws ready to make abortion a criminal act?  Did you know that seven other state legislatures are committed to acting to the extent that such a reversal might allow?

But how might that happen? Simple. First, a Republican President could appoint a conservative judge to the Supreme Court. Second, a local abortion clinic is prosecuted. Third, the case is appealed to the Supreme Court, which then overturns Roe by a 5-4 vote. Making it even more interesting, the Court could rule that the fetus is a person, thus paving the way to a national antiabortion law. (Hirshman, Washington Post, 9/28).

But that is not the end of the story. Did you know that all of the statute and case law which support reproductive technology relies upon Roe. So, if Roe goes, all of those statutes and cases are at risk.

Don't you think that prohibiting the infertile public from seeking medical help to conceive would be the real criminal act?

The India Supreme Court has set the stage for providing Assisted Reproductive Technology parents some predictability with the legal process of parentage.

On July 25, Manji was born. She was a Gestational Surrogacy baby from the sperm of a Japanese husband and an anonymous donor egg. Since birth, she has been in a legal limbo because the Intended Parents divorced during pregnancy. While Intended Father wanted to keep the baby, his ex-wife did not.

The Father applied to adopt the child, but Indian laws do not permit single men adopt baby girls. Further, Manji could also not be taken out of India because the legal system did not provide guidance to determine her nationality and the Japan would not issue a visa without proper documentation. Thus, she has been captive, in a hospital without her parents, since birth.

The Supreme Court ruled that commercial surrogacy was legal. That being said, Manji's Father can now petition Indian authorities to rule that he is Manji's biological father. As Father, he can forgo an adoption and documents can be issued which would allow his child to enter Japan.

This case galvanized the Indian Parliament to set out surrogacy laws to protect a US$445 million industry that has become a 'hub for fertility tourism'. The draft surrogacy Bill, called Assisted Reproductive Technology (Regulation) Bill 2008, is expected to be tabled at the next parliamentary sitting, and should help India's growing assisted fertility market.

First, the proposed Bill makes clear that a surrogacy child is the 'legitimate child' of the Intended Parents relying on assisted reproduction even if they become separated or divorced. Further, the child's birth certificate will bear the names of the genetic parents.

Second, it requires foreigners to register their intentions with their Embassy and provide proof that they will be able to take the child back to their country. They must also appoint a local guardian to be legally responsible for the surrogate until the child is born.

The Bill also mandates that Intended Parents shall execute a legally enforceable surrogacy agreement where they agree to pay the Surrogate's medical expenses, compensation and medical insurance. Surrogates and egg donors will be supplied by Sperm Donor Agencies.

Most legal authorities would agree that the surrogacy bill is a major step in the right direction. They also maintain that Intended Parents must look at more than the out of pocket costs to decide if or when fertility tourism is appropriate for their situation. 

Is cost the most important thing to you?

A woman in a committed relationship was denied infertility treatment by her Southern California healthcare providers because she is a lesbian.

The doctors' claim that they should be exempt from California's anti-discrimination statute because they have religious objections to serving lesbian patients was rejected at the trial level. The Court of Appeal reversed, stating that the doctors must be given an opportunity to demonstrate that their refusal was not based on her sexual orientation. That decision was appealed to the California Supreme Court.

In a unanimous opinion, the California Supreme Court reversed the Court of Appeal, and upheld the trial court's original decision. The Supreme Court held that non-discrimination laws regulate discriminatory conduct, not speech or beliefs, and that medical providers cannot assert religious objections to deny medical services to specific patients.

What is interesting is that the medical practice at the center of this hurricane has more than one doctor. The so-called "get out of jail card" for the practice is that the objecting physician can transfer the case to another practitioner in that office.  But is that the end of the story?

What happens if the non-objecting practitioners are employees of that practice and their employment contract contains a morals clause. California Law requires treating the patient, but they will probably lose their job. Alternatively, what if this was a solo practice where there are no other practitioners to turn the case over to.

How would these new issues be addressed by a discrimination analysis? The plain answer is that we don't know.

The Washington Post (Brulliard, Washington Post, 9/26) reports that a debate between the South African Zulu tribe and the government has arisen over the traditional practice of virginity testing. The virginity tests, usually performed by elderly tribal women, involve inspecting the genitals of girls for torn hymens. Advocates of the practice said the high prevalence of HIV/AIDS in the country makes the testing important because it serves as a "culturally sanctioned abstinence campaign."

Clearly the Government chose individual rights over those which are culturally derived when it banned the practice last year.

Is it me or have the tribal elders missed the point? If the hyman is broken through sexual activity, the "culturally sanctioned abstinence campaign" has already failed and the transmission of HIV/AIDS has already occurred. Its like monitoring the grounds with a Geiger counter to prevent an atomic weapon from being set off.

The problem with these programs is that they conveniently ignore male participation in the activity. If males chose to not participate in sexual behaviors with virgins, there would be no torn hymens. If males would not catch HIV/AIDS they could not pass it to their partners.

There is a cultural basis against females in many societies which subjects them to these types of activities and conveniently ignores their male partners. Paternalism is alive and well. Regulations directed to reducing unwanted pregnancies and or sexually transmitted diseases will fail unless the government and the culture underlying the government recognize that both partners have a responsibility to act appropriately.

Did you know that Mississippi and Florida are the only two states that forbid gays from adopting? I do not do adoptions for personal reasons. Nonetheless, the ban impacts the way I approach gestational surrogacies for single men and women.

Having said that, it appears Florida is moving away from its staunch prohibition against gay adoption. Just recently, a South Florida trial court judge ruled the 31-year-old gay adoption ban as unconstitutional and a gay foster Dad was allowed to adopt the learning disabled boy he's raised for the past 7 years.

The judge ruled that the adoption ban singles that group out for punishment.  The judge stated that "[c]ontrary to every child welfare principle the gay adoption ban operates as a conclusive or irrebuttable presumption that it is never in the best interest of any adoptee to be adopted by a homosexual." As Michael Allen, a constitutional professor at Stetson University in St. Petersburg, stated "Cracks begin to develop in legal doctrine even if it has no effect as precedent and it is not repeated someplace else."

For all you gay, prospective adoptive parents waiting in the wings, I am ecstatic for you.  Co-counsel in this case, Elizabeth Schwartz of Miami, is a friend of mine. Give her a call.