Tennessee Legislative Update: Commercial Surrogacy and a Pot of Gold

April 17, 2021 • Posted in Blog

By D. Joy Riley, M.D., M.A.
Executive Director

References to pots of gold usually occur in the month of March, and involve leprechauns and rainbows. This year, pots of gold figure in at least one set of companion bills (House Bill No. 1379 and Senate Bill No. 425) the Tennessee Legislature is transforming into law. Instead of leprechauns and rainbows, though, it is the fertility physicians/clinics and “third-party reproductive care for the benefit of the enrollee(s).” The pots of gold are to be provided by “insurance companies,” which means, of course, “the insured,” which would include all of us who pay insurance premiums in the state of Tennessee.

The possible enrichments available through Amendment No. 6666 to HB1379, sponsored by Representative Kumar, are enough to make a leprechaun drool. Consider these portions of Amendment 6666 to the “Tennessee Pro-Family Building Act”:

1) “Third-party reproductive care for the benefit of the enrollee” means the use of eggs, sperm, or embryos that are donated to the enrollee or partner by a donor, or the use of a gestational carrier, to achieve a live birth.

(2) Fertility treatment and standard fertility preservation services, necessary to achieve two (2) live births, or a maximum of three (3) completed egg retrievals with unlimited fresh and frozen embryo transfers, in accordance with the guidelines of the American Society for Reproductive Medicine, and using no more than two (2) embryos per transfer, when recommended by a physician as medically necessary;

(3) Fertility treatment consisting of a method of causing pregnancy other than sexual intercourse that is provided with the intent to create a legal parent-child relationship between the enrollee and the resulting child;

With a few keystrokes on a computer, commercial gestational surrogacy (rent-a-womb) can become a reality in Tennessee: no public discussion; no debate. The legal landscape is varied (see “Surrogacy: Why the world needs rules for ‘selling’ babies”) but that does not mean that Tennessee should join those who open their arms to the exploitation of women and children. How does the exchange of money for an infant differ from the selling of children? In the words of Dr. Seow Hon Tan,

The fight to legalize surrogacy exists to serve the desires of commissioning parents, not to protect the best interests of children. Poor prenatal attachments and other epigenetic effects of pregnancy cannot be ignored, as they may affect the future development of children. The trauma of separation and the special challenges in parenting newborns conceived through surrogacy present further concerns. The desire of children to reconnect with birth mothers and their right to know their origins must be considered.

The Tennessee bills do not appear to consider any of these important issues regarding surrogacy, and that is not all.

Amendment 6666 sets in law the expectations of successful in vitro fertilization (IVF) and live births. Let’s consider these. First, the typical cost of some of these procedures: According to FertilityIQ, the cost for one IVF cycle is likely to be >$20,000. Advertised less expensive rates usually are “basic” rates, with medications and various procedures not included. Egg, sperm, or embryos “donated” come with additional price tags, despite the use of the word “donated.” Sperm costs at least several hundred dollars; eggs, several thousand; and embryos, even more. Using a gestational carrier or surrogate — a woman who carries a child through pregnancy and then relinquishes the baby — is a very expensive route (not to mention the psychological and human cost). The price tag for an IVF cycle that includes a surrogate mother ranges $50,000-$100,000. Ka-ching!

Secondly, the goal (per #2 above) is two live births. How many cycles would that require? An article in JAMA (2015) revealed numbers from the UK. After six (6) cycles, the cumulative live-birth rate was 68.4% in women less than 40 years of age, using their own eggs; for women between the ages of 40-42, that rate was 31.5%. The rates for each cycle in women older than 42 years were consistently less than 4%. Remarkably, the TN bill would cover “unlimited” embryo transfers. Amendment 6666 does place a cost ceiling of $100,000 for fertility treatment per enrollee. Ka-ching! Ka-ching!

Beyond the monetary incentives to the fertility clinic physicians and staff, there are people involved here. Fertility treatment that “causes pregnancy” without sexual intercourse with the intent of producing a “legal parent-child relationship” means the intentional production of children whose parental ties are severed. This is not procreation of children, but production of young humans for the benefit of commissioning adults. As with any production, there will be quality control measures, including through “genetic testing.”

These companion bills (including Amendment 6666) should be soundly rejected. Tennesseeans do not need to fork over their hard-earned dollars in insurance premiums in order to fulfill the unlimited dreams of the fertility industry. Helping a husband and wife struggling with the pain of infertility is one thing; these bills are pots of gold for the fertility industry. In a “FISCAL MEMORANDUM” from the Tennessee General Assembly FISCAL REVIEW COMMITTEE regarding SB425-HB1379, dated 9 April 2021, it was noted

Corrected Assumptions for the bill as amended:
· Healthcare providers will experience an increase in business revenue for providing services.
The estimated increase in business revenue was more than $7,815,455 for the first year, and more than $15,632,509 for subsequent years.

Note: that was before Amendment 6666 changed the ceiling from $50,000 to $100,000 per enrollee! The House bill next goes to the Finance, Ways, and Means Committee. Perhaps you should weigh in with them.