Is an employer responsible for covering the delivery expenses of an employee who is acting as a surrogate mother? The employee is otherwise covered under the employer's group health plan.

I would think that the delivery is not a covered expense since the surrogate motherhood is a "business venture" outside of the employee's employment. Any comments or experience with this issue?

I'm not really sure about that "business venture" theory...however, let's start with what should be at least covered. Any complications resulting to mom would have to be covered because they're covered even if a plan doesn't offer maternity coverage. What does your state law say about the legal status of a child born to a surrogate mother? A few years ago there was a court decision in Ohio which (if I'm remembering correctly) overturned the requirement that the biological mother adopt the child born of the surrogate. Up until then the surrogate was considered the legal mother, I suppose with the same right to coverage as someone who bore a child and then gave it up for adoption. You would still cover delivery in that instance. How did the employer find out it was surrogate? I am unaware of this happening with any of our plans. However, nothing ever surprises me any more. It's situations like this that keep me employed.

Christine:

I’m kind of with Jeanine on this one. I’ve never heard of any cases that cover this situation, but if the plan covers employees in general for maternity care I agree that pre and postnatal care should be provided for the mother. I don’t see how the employer's plan could be relieved of its responsibility to cover at least the pre and postnatal expenses of the mother unless the plan document specifically addresses this issue. I would also agree that the child should be eligible for dependent coverage under the birth mother’s policy until such time as the child was legally adopted.

On the other hand, like Jeanine says if sate law determines the status of the child at birth the eligibility of the child to be a covered dependent may change.

In my opinion the idea that being a surrogate mother is a “business venture” shouldn’t have anything to do with determining the status of the birth mother’s rights to maternity coverage under the employer’s medical plan. Any employer or insurer that has thought of denying maternity coverage to surrogate mothers has done a lot of micro-management of their plan’s cost containment features and the amount of money they would save by doing so would be miniscule. Then again, like Jeanine nothing would surprise me.

I agree withthe comments of Jeanine and Kip.

On the other hand, if I were to deny paying for the expenses of delivery, I might argue it is excluded because the "injury or illness arose out the insured's employment for profit or gain"?

My problem with the "business venture" or "profit or gain" arguments is that I believe it is illegal to pay for surrogate services. I think you are allowed to pay for the mother's medical expenses, but you can't pay someone to profit by the service. So...you pay the cost to have the embryo inplanted, then only pay the delivery costs if the surrogate has no insurance. I looked through some of our language and saw this exclusion. How do you enforce it unless someone tells you its a surrogacy? We don't question anyone who gives up their baby for adoption.