At first blush, the women married to service members, or even service members themselves may look like ideal surrogacy candidates. Information on the internet suggests active duty military insurance, Tricare, is surrogacy friendly insurance. This information is misleading, and it is our hope to correct this.
We interviewed Jennifer White, agency owner of Bright Future Families, co-host of the podcast I Want to Put a Baby in You, and military wife of 25 years, who is an expert in interpreting Tricare policies when it comes to surrogacy.
Q: Can you tell us about your background and expertise in military healthcare and surrogacy?
A: I am married to an active-duty military member for 25 years, so I've personally experienced the Tricare system extensively. I worked for third-party collections on a military base, which gave me insight into how reimbursements are handled. I also run a surrogacy matching program and have managed many cases involving military families.
Q: What are the main concerns about using Tricare for surrogacy arrangements?
A: The biggest issue is Tricare's ambiguous language regarding reimbursement. Their policy states they have the right to "reasonable reimbursement," but there's no definition of what's reasonable, and there's no time frame specified for how long they have to seek reimbursement. For surrogates, this creates a huge risk because the medical bills are in their name.
Q: So a surrogate could be liable for costs years after the surrogacy?
A: Exactly. I've seen cases where Tricare has come back after people many years later. An important perspective I gained when my husband retired was that they held his final month's pay pending an audit of all 25 years of his service. So theoretically, a young surrogate could go through an entire military career, and during retirement processing, Tricare could come back and say she owes money from that surrogacy.
Q: What does it mean when Tricare says they "pay second" for services?
A: By law, Tricare must always be the secondary payer when multiple insurances are involved. So, if you have another policy, like an ACA policy through the exchange, that policy must be primary, and Tricare would be secondary.
Q: Can active-duty service members serve as surrogates?
A: This is limited. Only Air Force and Space Force members can act as surrogates - it's prohibited in the Army, Navy, and Marine Corps under the UCMJ. Even for those who can, there are administrative requirements:
They need commander approval
Local JAG must approve
They must stay on Tricare Prime
They need special arrangements for off-base care
Q: How does deployment affect military surrogates?
A: For active-duty surrogates, there's no guarantee against deployment until pregnancy is confirmed. You could complete all medical screening and legal work, but until there's a confirmed pregnancy, the service member could still receive deployment orders. Once pregnant, they become non-deployable.
Q: Are there any circumstances where using Tricare for surrogacy is acceptable?
A: There is one exception: when both the surrogate and intended parents have Tricare coverage. In this specific scenario, there is a carve-out in Tricare's policies that makes it acceptable.
Q: What do you recommend as best practices for surrogates who have Tricare?
A: The best practice is to go into it with eyes wide open and know that you're going to need another policy to act as primary insurance. This could be an ACA policy or specialized surrogacy insurance. It would not be wise to depend on or lean on Tricare as your coverage.
Q: Why are military spouses often considered good candidates for surrogacy?
A: Military families typically have incredible support structures around them, even without nearby family. However, it's important to note that the old perception that they're "less expensive" because of Tricare insurance is problematic and risky. While military spouses often make wonderful surrogates due to their strong community connections and support systems, the insurance aspect should not be a factor in the decision.
Q: Any final thoughts about Tricare and surrogacy?
A: It's really quite straightforward: don't use Tricare as primary insurance for surrogacy. When nobody can tell you what "reasonable reimbursement" means, and there's no time limit on when they can seek that reimbursement, the risk is simply too high for any military family to take on.
Conclusion:
Navigating military surrogacy and Tricare coverage isn't just complicated – it can be potentially risky. The key takeaway from this discussion is clear: Tricare should not be relied upon for surrogacy arrangements. The complete lack of a statute of limitation for reimbursement claims, the undefined "reasonable reimbursement" standards, compared to the short duration of an escrow account remaining open mean that surrogates could be responsible for unpaid medical bills. The only exception is when both intended parents and surrogate are military families with Tricare coverage.
If you don’t know if your surrogate’s insurance policy covers surrogacy, consulting with a licensed insurance broker and a surrogacy lawyer is a good place to start.
As Fellows of the Academy of Adoption & Assisted Reproduction Attorneys (AAAA) and the Academy of California Adoption-ART Lawyers (ACAL), Tsong Law Group brings extensive expertise to the practice of surrogacy law. Our award-winning lawyers are licensed in California, New York, Illinois, Washington, Oklahoma, and Arizona.
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