Monday, 11 March 2013

Surrogacy arrangements: Who pays the piper?

In my native Australia, two women from Queensland are campaigning for surrogacy costs to be subsidised by the Australian taxpayer.

Melissa Delaware, 35, and Jillian Spears, 40, cannot bear children following their respective battles with cancer which required the removal of their uteruses.  They are each trying for a child using a surrogate mother.

The Australian publicly funded universal health care system is called Medicare.  It allows Australian citizens and permanent residents to receive subsidised treatment from medical practitioners, nurse practitioners and allied health professionals.  Medicare covers the lion’s share of the treatment fee, and patients then pay the balance. 

IVF is provided under Medicare, irrespective of the patient’s income, the number of cycles and whose genetic material is used.  However, Medicare does not presently cover any of the expenses incurred by a Commissioning Parent seeking to have a child through surrogacy.

The two women say this is discriminatory and are petitioning the Australian Federal Government to change the regulations.  Mrs Delaware said while babies born through surrogacy were recognised for tax purposes and paid parental leave, any treatment leading to their birth was not recognised by Medicare.

"Any other woman could do this four times for the same money we're spending on just one cycle," said Mrs Delaware.  "A woman without a uterus or the ability to carry a pregnancy for medical reasons is treated less favourably than other women who can."

Figures show a single cycle of IVF in Australia incurred out-of-pocket expenses of between AU$3,400 (£2,350) and AU$4800 (£3,300).  Mrs Delaware expects her costs to reach more than AU$50,000 (£34,400).

On top of these IVF costs, Commissioning Parents using surrogacy also face legal and counselling costs and their surrogate's health, insurance and travel costs.

Mrs Delaware estimated the average cost of legal surrogacy to be around AU$60,000, (£41,200). 

A spokesman for the Federal Health Minister said the Australian Government would consider the matter.

So much for the Australian angle – what about the situation here?  Well, as in Australia, surrogacy in the UK can be costly.  Whilst commercial surrogacy is illegal, it is perfectly proper – and common – for expenses to be paid to the surrogate.  The precise payment made varies, but tends to range from about £7,000 to £15,000.  There is no upper cap on the amount that may be paid, but an English Judge asked to make a Parental Order following a surrogacy arrangement is likely to need some persuading that expenses exceeding £15,000 were reasonable. 

It may appear cheaper to enter into a surrogacy arrangement overseas, but the costs associated with then dealing with some of the complications that such arrangements tend to bring may make this a false economy.  These include:

·                    the child’s nationality, if born abroad to a non-British / EU citizen;

·                    the child’s entry clearance – if not an EU national, he or she will need a visa to enter the UK;

·                    different approaches abroad to the commercialisation of surrogacy – in some countries, payments in addition to expenses are legal and required;

·                    the fact that a surrogacy arrangement might be enforceable abroad but not in the UK, and

·                    differences between countries about who is treated as a surrogate child’s legal parents.

On top of the costs payable to the surrogate, if the surrogacy is performed at a HFEA-licensed clinic, there will be additional fees for the IVF procedure – between £15,000 and £20,000. 

Last, there potentially are the legal fees associated with obtaining a Parental Order, which I considered in a recent blog.

It might be possible for some of the costs associated with the IVF procedure to be met by the NHS.  However, the provision of IVF treatment varies across the country.  It often depends on local policies.  Priority is often given to childless couples.  In many areas Primary Care Trusts (PCT) refuse to fund surrogacy-IVF because the resulting embryo will be implanted in the womb of a surrogate.  Guidance from the National Institute for Health and Clinical Excellence (NICE) states that where the reason for infertility is known, patients should be fast-tracked for NHS-funded IVF treatment.  However, the Guidance goes on to exclude surrogacy from its remit. 

Following a trawl through Google, I’ve not been able to find any private health care insurance that would cover the costs of IVF treatment (although most will fund investigations into the underlying causes behind an inability to become pregnant).

At present, much as in Australia, there is no entitlement to look to the NHS for a contribution to the surrogacy expenses. 

The commercial reality is that many Commissioning Parents here have to save or borrow (either through personal loans or by mortgaging property) to meet both treatment costs and surrogacy expenses.  Another common option is to rely on credit cards.

Should we be more ready here to fund the IVF procedures associated with surrogacy arrangements on the NHS?  There is force behind the line taken by Mesdames Delaware and Spears in Australia, namely that treating women (and the funding of their IVF) unable to carry a child for medical reasons differently is inherently discriminatory. 

To those who have been through the surrogacy experience, I’d love to hear:

·                    who your PCT was, and their attitude towards NHS funding of the IVF, and
·                    what arrangements you had to make to fund the process. 

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