Equal Access to Fertility Treatment Hindered by Lack of Surrogacy Laws

Members of Hawaii’s LGBT community decided to advocate for a bill granting equal access to fertility treatments, which is a commodity that married, heterosexual couples enjoy under state law.  Such bill was aimed at insurance companies to cover in-vitro fertilization for gay couples. Hawaii would have been the first state to pass a legislation requiring insurance companies to provide coverage for surrogates, and this would have helped male same-sex couples who want to build a family by using surrogate mothers.

It is important to know that Hawaii is one of the eight states that already requires insurance companies to cover in-vitro fertilization, a procedure where a doctor has to retrieve eggs from a woman, combines them with sperm from a man and implant an embryo into a woman’s uterus or surrogate. However, this applies only to married heterosexual couples since it covers medical procedure with the condition that a woman has to use sperm from her spouse, which for obvious reasons excludes members of the LGBT community and single women.

This bill should not come as a surprise, on the contrary, it should be viewed as any other law providing equal rights for all Americans, and those part of the LGBT community. Obergefell v. Hodges (2015) determined that the fundamental right to marry is guaranteed to same-sex couples by Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the United States constitution.  With marriage equality being accepted and protected by the law, there has to be equality when it comes to building a family for same-sex couples.

The necessity for equality in this case is well illustratd by Sean Smith and his husband. Both decided to build a family together, but after not counting with any financial help from the state, they had to pay out of pocket for in-vitro fertilization intervention performed on the surrogate who aggred to carry their son to term. “At the end of the visit, I would be going into the office and pulling out my credit card, and other people are probably just walking out and insurance is picking up the tab…We had to borrow money, refinance a second mortgage, and I’m sure there are people who don’t even explore the option because the expenses are too great” Smith said.

Two major Hawaiian insurers have already initiated the process to include same-sex couples in their fertility coverage. However, the general response from Hawaii’s major health insurance companies ultimately resulted in the rejection of the bill. These companies opposed such bill because of the legal complication that may surface as a result of not having state laws covering surrogates. Nonetheless, they reassured that coverage for in-vitro fertilization for lesbian couples and single women is being provided, but this coverage could not be extended to surrogates due to the previous reason stated above.

State Senator Rosalyn Baker does not oppose the bill but acknowledges the fact that a study on surrogacy laws is necessary in order to provide equal access to fertility treatments. “I’m not certain that it’s ready for prime time, considering that we have no surrogacy laws on the books in the state of Hawaii, and I believe we need to address those,” Baker said.

Following her judgment, Senator Baker said she would pass a pending resolution asking the state attorney general to study surrogacy laws with the intention of promoting lawmakers to work on this issue to discuss this bill in next sessions. All in All, the ultimately outcome is not the one that LGBT community members were hoping for, but it certainly triggered some legislative action and process to consider equal access to fertility procedures.



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