Under Hawaii law, insurers are required to cover one round of in vitro fertilization for some married, heterosexual couples. Advocates from the gay and lesbian community are pushing for equal access to that money-saving benefit.
A Hawaii bill would extend the IVF coverage mandate to same-sex couples and single women. It also would make Hawaii the first state to require coverage for surrogate mothers, which could help male couples who need a surrogate to carry a child.
But health care lobbyists are pushing to remove part of the bill that extends the coverage mandate to gestational carriers, saying Hawaii law has no legal protections for surrogates because the state law is silent on the issue. They say the state should write laws on gestational carriers before making insurers cover procedures for the group.
"When you start thinking about it there are so many potential issues that to pass a law just seems a little bit premature," said Beth Giesting, lobbyist for Hawaii Association of Health Plans, which represents the major health insurers in the state. "Without that legal infrastructure, the potential for wading into a lot of problems — not just for insurers, but also for the providers and for the surrogates and the intended parents — it's just a very unsettling situation."
Intended parents and gestational carriers need to be on the same page about what they'll do if there are multiple fetuses, genetic issues or a surrogate who changes her mind about giving up the baby, she said. Without laws on the topic, insurers fear they could be caught in the middle of legal battles.
Mandy Finlay, advocacy coordinator ACLU of Hawaii, called the insurers' argument a "desperate, last minute attempt by an insurer to put profit over equality," saying they're pushing back on the surrogacy aspect of the bill because their other arguments against the proposal failed.
Questions about what would happen under the scenarios Giesting outlined are covered in private agreements executed between intended parents and gestational carriers, and those agreements are recognized by state courts when assigning parental rights, said Carol Lockwood, a partner with Honolulu law firm Schlack Ito.
"It's pretty sad to say that these people who prepare so well to be parents and have to work so hard to be parents shouldn't be allowed to," Lockwood said. Hawaii is one of eight states that require insurance companies to cover in vitro fertilization, a costly procedure in which a doctor retrieves eggs from a woman, combines them with sperm from a man and then implants an embryo into a woman's uterus.
"If you're a gay male couple, they're paying the same premiums as everyone else, they have equal rights," said Democratic state Sen. Maile Shimabukuro, who introduced the bill. "But yet here, in this instance, it's clearly not equal because they cannot access the same benefit that a heterosexual couple could."
Sean Smith, who with his husband paid more than $20,000 for fertility procedures before a surrogate carried their son Charlie to term, said he's disappointed that after three months of hearings on the bill insurers are taking issue with surrogates. "They waited to the last minute to bring this up," he said.