Insurance Victory for Surrogacy in New Hampshire--FAQs

We’re thrilled to let you know that New Hampshire Governor Chris Sununu just signed into law legislation which expands infertility insurance coverage in New Hampshire. And we’re even more thrilled that our own co-Director, Catherine Tucker, was instrumental in making this law happen.  Catherine is a surrogacy lawyer in New Hampshire and has been dreaming and contemplating how to make this happen since she went through her own infertility struggle (and lots of IVF!!) over ten years ago. This law has been a long time in the making!

How does this new law impact surrogates and intended parents in New Hampshire? Here’s our FAQs to help you find out:

How does this new infertility insurance law apply to surrogacy in New Hampshire?

Beginning on January 1, 2020, most employer-provided health insurance 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 will have coverage for making the embryos that will be used with a gestational surrogate. This includes making embryos from donor eggs. Lots of good news for intended moms living in New Hampshire!!

And good news for gay couples living in New Hampshire.  The law prohibits insurance companies from discriminating against them on account of their sexual orientation.  So two intended fathers will receive coverage for their infertility-related treatment (read more on this below).

I’m relying upon both an egg donor and gestational surrogate for my surrogacy journey.  Will making embryos with donor eggs be covered for me? Are there expenses relating to the egg donation that I will have to pay out-of-pocket?

The insurance coverage is only for medical expenses. Medical expenses include the donor’s medical costs associated with screening, medications, monitoring, and egg retrieval. Following the retrieval, medical expenses associated with fertilization, embryo culture, and freezing are also covered. 

Any non-medical costs are your own responsibility. Here are some examples of non-medical costs: the agency fee, the donor’s compensation, legal fees for your egg donation contract, and the donor’s travel expenses. 

Also, expect to pay for storage of your embryos. Short-term storage of your embryos at the IVF clinic might be covered, but expect to pay out-of-pocket for long-term storage. Also expect to pay out-of-pocket for embryo transfer related costs.

I’ve heard that this new law does not apply to surrogacy? Is this correct?

No. The law does apply to gestational surrogacy. Making of embryos to be used for later transfer to a gestational carrier is covered (and we all know how expensive that can get!). Unfortunately, the transfer- related costs are not covered when a gestational carrier is used.

With regards to surrogacy, what specifically is not covered under the new infertility insurance law in New Hampshire?

Embryo transfers to gestational carriers are not covered under the intended parents’ own health insurance policy. This means the following costs are the responsibility of the intended parents: screening of the gestational carrier, medications to prepare the gestational carrier’s uterus, the actual embryo transfer procedure, and the follow-up pregnancy confirmation blood work and ultrasounds.

Two important things to know about this: First, insurance companies can choose to voluntarily cover these procedures. And, second, the surrogate’s own insurance might cover the early pregnancy blood tests (“beta tests”) and ultrasounds, so be sure to check that before cash-paying for those appointments.

What about maternity care for my surrogate during the pregnancy? Will this be covered by the infertility insurance law?

Maternity care benefits for prenatal care are not covered under the intended parents’ infertility insurance. However, the surrogate’s own health insurance might cover maternity care received during the pregnancy and the delivery. The best way to find out if maternity benefits are available is through a specialized surrogacy insurance verification. We help our clients with arrangements for such a review with an insurance agency that specializes in surrogacy insurance.

What kinds of health plans are required to comply with this new infertility insurance law?

The law applies to group insurance plans only--the type of insurance you get through your employer. Individual insurance plans, such as health insurance purchased from the ACA marketplace, is not covered. This decision was made during the legislative process because the individual insurance market is very fragile at this time and it would be difficult to implement this type of requirement within the individual market. Individual plans can choose to comply with this new insurance mandate, so it’s always worth checking out the specifics of your insurance plan. Some uncommon plans--SHOP plans and extended transition plans--are also not required to comply with the law. 

Lastly, the law does not apply to any employer based “self-funded” plan. The reason is that federal laws do not permit state laws to impose requirements upon self-funded plans. However, self-funded plans can choose to match the coverage required under the law. Sometimes all it takes is an ask of your employer.  Learn more about how to do that over at Fertility Within Reach.

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

Ask Human Resources. Large employers are more likely to have self-funded plans. It can get a little confusing because self-funded plans typically hire insurance companies to manage the plans. So the documentation you have about your health plan will include the name of an insurance company (like Anthem or Tufts). HR should be able to give you a quick answer. 

We are a gay couple planning on gestational surrogacy with an egg donor. Tell us how this new infertility insurance law applies to us?

The law recognizes that infertility can be either female factor or male factor. And gay men can be infertile just like straight men. 1/3 of infertility is due to male factors, which don’t discriminate between straight and gay men. When you begin treatment, your reproductive endocrinologist (AKA fertility doctor) will have your sperm tested for male infertility factors. 

With a diagnosis of male infertility, you are entitled to benefits under the infertility insurance law to treat your infertility. Depending on your specific diagnosis, the appropriate treatment may be making embryos via in vitro fertilization (IVF), in which case your IVF treatment should be covered by insurance. You may get pushback from the insurance company about paying these bills. If that happens, please reach out to Catherine at her law firm to find out what steps you can take to challenge this.

Please keep in mind that you will be responsible for the costs of retrieving eggs from your known or anonymous egg donor (or the costs of purchasing frozen eggs from an egg bank).

I am a single intended father. How does the infertility insurance law apply to me?

As with gay couples, you would receive benefits for any male factor infertility. 

I’d like to read the actual law. Where can I find it?

You will want to look up NH RSA 417-G. The law itself creates an entire new chapter in New Hampshire’s Revised Statutes Annotated.  It will be available online shortly.

I live in Vermont but work in New Hampshire. Am I eligible for infertility insurance coverage under this law?

The nitty-gritty is found in the law’s definition of “health carrier”.  The question is not where you live, but whether you have a New Hampshire insurance plan. Many companies purchase insurance through the location of their headquarters. So ask Human Resources for details about the company’s insurance plan.

I think I’m entitled to receive insurance coverage, but the insurance company gave me a denial letter. What can I do?

An insurance appeal may be an option for you.  Please keep in mind that there are time limits for insurance appeals, so don’t delay because you could miss important deadlines. Reach out to Catherine directly (at her law firm) to get more information on pursuing an appeal.

My IVF clinic is refusing to submit my insurance claim for my IVF egg retrieval. They are saying it won’t be covered because I’m using a gestational carrier. Are they right?

No. The law covers egg retrievals (and associated medical costs) even when the ultimate embryo transfer will be to a gestational carrier. 

My IVF clinic refuses to submit my insurance claim for frozen donor eggs. They say frozen eggs are not covered. Is this correct?

Frozen eggs have not been considered an experimental treatment for several years now.  And there is no exclusion in the law for frozen donor eggs. Therefore, they should be covered. It gets a little tricky because the price of frozen donor eggs lumps together medical and non-medical costs (since you are buying an already retrieved batch of eggs). You will want to talk to Catherine directly (at her law firm) about this to get the insurance coverage you are entitled to.

Are there cycle limits on how many times I can undergo egg retrieval?

There is no maximum number of cycles written into the law. Insurance companies can place limits based upon your personal medical history. If you are deemed an inappropriate candidate for further cycles, then you can be denied for additional egg retrievals. This is something that is addressed on a case-by-case basis.

I need to pursue surrogacy because I lost my uterus during the birth of my first child. Our only option to have another child is surrogacy. I still have my ovaries and want to undergo an egg retrieval. My insurance company is refusing to pay saying that I was “voluntarily sterilized”.  Is my insurance company right?

This is a bit tricky. The law does exclude coverage for “reversal of voluntary sterilization” but that doesn’t seem to quite fit your situation, does it? Again, you will want to get in touch with Catherine directly at her law firm so she can discuss your options for an appeal.

Are medications for my egg donor covered under this law? What about medications for my surrogate?

If your insurance provides coverage for prescription medications, than you can also receive coverage for medications for your egg donor. However, medications for your surrogate are not covered.

I’m a New Hampshire resident and I have just been diagnosed with breast cancer. I am having surgery next week and right after that will be undergoing an egg retrieval cycle to try to preserve my fertility. After I finish chemotherapy, I will have to be on Tamoxifen for at least five years, so we plan to build our family with the help of a surrogate. What’s covered for us?

The law covers the egg retrieval and freezing of your eggs. Storage of your eggs is covered for the short-term, but you will need to pay out-of-pocket for long-term storage. When you are ready to proceed with your family building, thawing and fertilization of your eggs should be covered, as well as culturing the resulting embryos. You will be responsible for the costs associated with the transfer of the embryos to your surrogate’s uterus.

Are uterus transplants covered by this law?

Not at this time.  No insurance company is required to cover experimental treatments.  Currently, uterus transplants are still experimental. We hope that will change soon (and don’t forget to read our friend April Lane’s story about actually donating her own uterus!)

Is there an age limit under this law for becoming parents via surrogacy?

No. Limits have to be medically based. However, medical factors associated with an older age may disqualify you from coverage for certain treatments.

Please keep in mind we are providing this information only as a courtesy. For legal advice about health insurance laws and surrogacy, please contact Catherine directly at her law firm.  If you are seeking more information about the surrogacy process, or are ready to become an intended parent, then contact us at New England Surrogacy.