*1 Mercycare Company Insurance Mercycare HMO, Inc., Petitioners-Respondents,
v. Wisconsin Commissioner Insurance,
Respondent-Appellant.
Supreme Court
2,
argument
No. 2008AP2937. Oral
March
16,
July
—Decided
no
ill *6 respondent-appellant argued For the the cause was by attorney general, Olsen, Bruce A. assistant with attorney Rollen, whom on general. brief was J.B. Van petitioners-respondents by For the there awas brief Duchemin, Toman, Matthew J. Quarles William J. and Brady argument by LLP, Madison, & and oral Matthew J. Duchemin.
An amicus curiae brief was filed Andrew C. Cook Council, and the Inc., Madison, Wisconsin Civil Justice Godfrey Kahn, S.C., James A. Friedman and & Madison, on behalf of the Wisconsin CivilJustice Coun- cil, Inc. BRADLEY, 1. ANN WALSH J. This case is before appeals,
the court on certification from the court of (Rule) pursuant § to Wis. Stat. 809.61.1 The certifica- certify appeal tion states: "We this to the Wisconsin Supreme Court to determine whether Wis. Stat. 632.895(7) § permits maternity an insurer to exclude acting for an insured as a mother. question part, by The answer to this determined, any, what of deference, level if should be accorded the Commissioner's decision."
1All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise indicated. that Wis. Stat. concluded 2. The Commissioner 632.895(7) to exclude an insurer does not permit
§ for surrogate services maternity covered generally determined Thus, the Commissioner mothers. ambiguous, 2002 Contract was MercyCare's ma- covered generally to exclude MercyCare's attempt mothers under its 2002 for surrogate services ternity Stat. Wis. requirements Contract contravened 632.895(7). determined that reason, the same hе For § 632.895(7). § Wis. Stat. 2005 Contract contravened the 2005 also disapproved the Commissioner Finally, 631.20(2)(a)l., determining under Wis. Contract Stat. are too because the benefits misleading *7 is policy for which to serve the purposes restricted no deference review, the circuit court accorded On sold. Stat. of Wis. the Commissioner's 632.895(7) legal and reversed the Commissioner's § conclusions.2 deference, we conclude weight due 3. Applying
¶ ser- maternity not make routine an insurer that un- under the policy are covered generally that vices insureds, surrogate subgroup to a specific available for reasons mothers, on the insured's solely based used to achieve or the method becoming pregnant MercyCare's we determine Accordingly, pregnancy. from to exclude cover- of the 2002 Contract application mothers con- for all services age maternity 632.895(7). § travenes Wis. Stat. ap- the Commissioner 4. We also conclude
¶ surrogacy provision disapproved propriately contrary it is Contract because 2005 MercyCare's 632.895(7). addition, In the definition Wis. Stat. County, James E. Rock Judgment of the circuit court for Welker, Judge.
"surrogate mother" set forth in the 2005 Contract misleading because the benefits are too restricted to serve purposes which sold. Accord- ingly, we reverse the decision of the circuit court.
I 5. MercyCare Insurance ¶ Company Mercy- HMO, Care Inc. (collectively are "MercyCare") insur- ance companies authorized to do business in Wisconsin subject to the jurisdiction and control of the Wis- consin Commissioner of Insurance. In 2002, MercyCare offered a group disability insurance policy that provided maternity coverage for eligible persons covered under the policies. J.M. and C.S. were eligible persons insured by
MercyCare under MercyCare's 2002 Certificate of Cov- ("the Contract").3 erage C.S. was insured as a dependent, and J.M. was insured as an employee. 7. While insured under the 2002 Contract, J.M. and C.S. each agreed to act as a gestational carrier carrying child for other parents. The children carried by J.M. and C.S. are not genetically related to J.M. or C.S. respectively. 8. Both women received health care services in
connection with their pregnancies. J.M. received medi- *8 cal care including tests, laboratory ultrasounds, mater- care, nity physician visits, inpatient hospital care, an- esthesia The delivery. total costs incurred amounted to $16,774.63. C.S. received comparable pre- medical post-partum services, with costs totaling $18,510.84. During course of their pregnancies, Mer-
cyCare denied coverage for the maternity services re-
3 Form MCHMOAUG2002
118 ceived both J.M. and C.S. by It notified J.M. that lab benefits for work were denied because the being contract "surrogate did cover mother services."4 informed J.M. letter: Subsequently, MercyCare coverage MercyCare is unable to authorize for all pregnancy. provided services related to this Services through eligible repro- from 1-7-05 are not for 5-10-04 pregnancy Any ductive services benefits or benefits. paid recouped. benefits for the services will be similarly coverage C.S. was deniеd based on the 2002 "surrogate Contract's identification of mother services" as a "non-covered service" under Contract's "Preg- Benefits nancy coverage."5 10. The 2002 Contract provides "surrogate
mother in services" are a "non-covered service" two the section titled separate places "Pregnancy —under and under Benefits" section titled "Reproductive However, the Services." term mother services" "surrogate anywhere is not defined within the 2002 Contract.6 part: "MercyCare Company The letter stated Insurance request you coverage has received a to receive for the following testing service: obstetrical at Meriter Perinatal Clinic surrogate pregnancy for twin from mother services. It has been determined that this service is not a covered Your benefit. your Coverage: denial was based on Certificate of RE under SERVICES; PRODUCTIVE NON-COVERED SERVICES: Sur Therefore, rogate mother services. Insurance Com pany is unable to authorize for services related to surrogate mother services."
5MercyCare informed C.S.: 'Your denial was based on: Your Benefits, Coverage Pregnancy HMO Certificate of under non covered services: mother services are not covered." Coverage The Certificate of for the 2002 Contract had approved by been the Office of the Commissioner of Insurance (OCI) prior During proceedings to its use. before the Commissioner, explained when an OCI insurance examiner *9 The Benefits" section "Pregnancy provides
as follows:
Covered Services: employee, pregnancy is covered for an an Treatment employee's employee's dependent spouse, covered or an dependent covered child.
Pregnancy inpatient hos- benefits include pital pre- post-natal care and care received from a participating provider. Services:
Non-Covered
(cid:127) Surrogate mother services.
(cid:127) Elective abortions.
(cid:127) Maternity services received out the service area days pregnancy prior
the last 30 without autho- except emergency. rization from the Plan in an Prior necessity. on medical authorization is based (cid:127) (CVS) sampling Amniocentesis or chorionic villi
solely for sex determination. addition, In "Reproductive Services" section of 2002 Contract lists various covered services and pro- vides that mother services" are a "non- "surrogate covered service."7 Contract, approved provision
she the 2002 she believed the excluding "surrogate mother services" was intended to exclude expenses pay person incurred an insured to for a third gestational carry act as a or child on carrier and behalf of that insured. following "reproductive The services" are non-covered
services under 2002 Contract: *10 12. After for J.M. and denying coverage C.S.'s ¶ to MercyCare sought pregnancies, recoup money had for claims related to the already paid pregnancies. Ultimately, the services to both women were provided in full third paid parties. 13. C.S. filed a with the Office of the complaint
Commissioner of Insurance. Her complaint triggered agency's MercyCare's review denial of review, the two women. this filed its During ("the group disability policy newest insurance form Contract")8 2005 with OCI for approval.9 In many respects, 2005 Contract is iden- However, tical to the 2002 Contract. the 2005 Contract the language revises of the mother services surrogate exclusion and a definition for the term provides "surro- mother." gate
(cid:127) Any pregnancy, other artificial achieve means to consultations for, any with, procedures or in connection but limited to in fertilization, (GIFT), gamete fallopian vitro intra transfer embryo transplant, any reproductive or other assistive tech- nique. (cid:127) voluntarily procedures. Reversal of induced sterilization (cid:127) sperm. Donor
(cid:127) Charges donor, laboratory biological directly or fees related procedure. to the insemination (cid:127) scarring by implantable Revision de- caused birth control vices. (cid:127) Surrogate mother services.
(cid:127) Elective abortions.
8 MCPlusRCPPOAug2005. Form no.
9 exceptions, Wis. Stat. 631.20 states that with certain "No approved [] form be unless it has been filed with and used by the commissioner and unless the insurer certifies that the complies promulgated form chs. with rules under chs. 600 to 655...." "surrogate excluding Rather than simply services," provides the 2005 Contract
mother "Treatment, ser- Service": following is "Non-Covered any preg- or surrogate for a mother supplies vices or as a from service nancy resulting your 2005 Contract provides Additionally, mother." mother": "surrogate the term definition of following who, through in a woman Surrogate mother means fertilization, any other means оf vitro fertilization or may may not have a child which she or gives birth to a to, provides a relationship or an individual who genetic *11 gestation of a fertilized ovum obtained uterus for the parented by the child will be from a donor when gives woman who birth. someone other than the the 2005 Contract letter 16. OCI disapproved letter that 11, explained 2006. The January dated a "[treatment, services or for supplies exclusion for resulting your from any pregnancy mother or surrogate mother," must be deleted because service as a surrogate maternity coverage may that "[a] policy provides on method of as conception, limit based coverage restrictive and discrimina- unfairly such a limitation is hearing. a tory."10 MercyCare requested 15, 2006, issued a Notice February 17. On OCI violated Wis. Stat. Hearing alleging 632.895(7) for J.M. and C.S.'s § when it denied The notice fur- under the 2002 Contract. pregnancies 631.20(2)(a), § the commissioner Under Wis. Stat. unfairly upon finding inequitable, form "it is disapprove a a encourages discriminatory, misleading, deceptive, obscure or including "[i]s where the form mis misrepresentation," cases to achieve the leading because its benefits are too restricted form policy is sold" and cases where the purposes which commissioner, promulgated by the or "violates a statute or rule contrary to law." is otherwise alleged disapproval ther that the of the 2005 Contract appropriate policy was because the exclusions violated maternity the mandated benefits of Wis. Stаt. 632.895(7) § misleading and were under Wis. Stat. § ultimately 631.20. The case went before the Commis- parties agreed sioner of Insurance. The to submit the stipulation briefs, case on the basis of facts, stipulated other documentation.
¶ 18. The Commissioner issued a final decision (1) 8, on December 2006. It concluded that: under the § 632.895(7),11MereyCare may mandate of Wis. Stat. maternity coverage not exclude of otherwise covered persons surrogate based on their mothers; status as (2) surrogacy properly even if the services could he language ambigu- excluded, the of the 2002 Contract is (3) appropriately disapproved MercyCare's ous; OCI 2005 Contract because the mother exclusion 632.895(7) contrary § is to Wis. Stat. and the 2005 misleading Contract because its benefits are too purposes restricted to achieve the for which the sold.
¶ 19. The decision first addressed whether 632.895(7) MereyCare permitted was under Wis. Stat. maternity coverage to exclude on the basis that *12 acting surrogate insured was as a mother. The Commis- explained required application sioner that the issue the of "exclusions or limitations" to a set of facts unantici- pated by legislature the at the time the statute was passed. According interpreta- to the Commissioner's 632.895(7) § provides Wis. Stat. as follows: Every group disability policy provides maternity insurance which coverage provide maternity coverage persons shall for all covered policy. Coverage required may
under the under this subsection not subject appliеd be to exclusions or which are not limitations maternity coverage policy. other under the history legislative the statute's indicates that tion, "the purpose therefore, the of inclusiveness" is one maternity provides policy if the ensures that statute coverage, equally. persons must be treated covered all MercyCare's "[T]he exclusion is to whether answer requires permissible Mer- of whether a determination group provision attempting cyCare of a the to exclude group a of insureds." exclusion of of services or the that under concluded 20. The Commissioner coverage may deny of certain statute, an insurer specific procedures, fertilization, to all in vitro such as policy. people However, an insurer under covered maternity may deny for all services not on their based covered under some insureds becoming pregnant. Therefore, the insurer reasons for maternity generally deny coverage covered a mother. the insured is services because Additionally, that the sur- concluded the Commissioner ambiguous rogacy in the 2002 Contract exclusion appro- disapproval 2005 Contract was that priate of the OCI's § 631.20. under Wis. Stat. judicial petition review filed County court Court. The circuit
in the Rock Circuit Commissioner's no deference to the Insurance accorded legal had not because the Commissioner conclusions 632.895(7) interpreted previously it de- and because particular had no Commissioner termined determining apрli- expertise it in that would assist cability Rather, case the statute. stated impression." was one of "first that "the Com- 22. The circuit court determined authority statutory of Insurance exceeded its missioner disapproving insurance," and it the certificate of approve the 2005 Con- the Commissioner to ordered reaching decision, it concluded that Wis. In this tract. *13 632.895(7) "clearly unambiguously" permit- Stat. maternity ted to exclude for oth- persons serving erwise covered who were as required only mothers. It determined that the statute "any applied exclusions or limitations must be uniformly persons," to all covered and that "the exclu- surrogate parents applies sion for is an exclusion which uniformly persons."12 to all covered appealed,
¶ 23. The Commissioner and the court appeals appeal explained certified the to this It court. question proper interpre- that its answer to the of the part, by tation of the statute would determined, be the level of deference that should be accorded the Although Commissioner's decision. OCI had never be- interpreted specific statutory fore subsection at implied experience issue, the court that OCI had inter- preting mandatory coverage provisions. other The "guidance [] topic court stated that is needed on this apparent because is not from the case law to date given agency's what level of deference should be to an particularly decision when the issue is within the agency's expertise specialized knowledge, area of agency construing specific but the is statute for the first time." appeals "[a] 24. The court of commented that suggest question
number of cases that a one of impression. simply agency first .. because an is ad- dressing a new fact situation for the first time. We question approach any whether the should be different agency addressing particular statutory an when lan- guage for the first time."
12The circuit court also stated unnecessary it was parties. address other issues raised
II of the we review decision appeal, 25. On ¶ of than the decision Insurance rather Commissioner of the court of The and parties dispute, the circuit court. of of, standard uncertain the applicable was appeals this first. question We address review. Stat. interpret 26. are asked to Wis. We
¶
632.895(7)
issue
to the exclusions at
apply
and
MercyCare's
to interpret
this case. We are also asked
Contracts,
are
of insur
policies
2002 and 2005
which
statutes
application
ance. Interpretation
Trucks N
of law. Volvo
are
policies
questions
insurance
Ctr.,
Am. v.
Truck
15,
11,
WI
323
Wausau
2010
¶
v.
Stuart
Show
294,
Weisflog's
423;
2d
Wis.
779 N.W.2d
Inc.,
492,
86,
2008 WI
18, 311
2d
Gallery,
room
Wis.
¶
This court decides
of law
questions
N.W.2d 448.
753
rendered
analyses
but benefits from the
independently,
v.
Pawlowski
the circuit court and court of
by
appeals.
Co.,
Ins.
16,
Family
Am.
Mut.
105,
2009 WI
¶
21,
2d
¶
law,
agency's
a court
is never bound
an
tion
a statute. Hutson v. State Personnel
interpretation
Com'n,
31,
97,
612,
2d
665 N.W.2d
2003 WI
263 Wis.
¶
circum
Nevertheless,
212.
a court will under certain
inter
statutory
an
give
agency's
stances
deference
State, Racine
v.
Harley-Davidson
pretation.
Id.]
86,
549,
2d
tory interpretation no deference when the issue is one of first impression, when the agency has no experience *15 or in expertise deciding the legal issue presented, or when the agency's on position the issue has been so as to provide no real guidance. Id., inconsistent 19. ¶ When no deference to the agency decision is warranted, the court interprets the statute and independently the adopts interpretation it deems most reason- able. Id. 30. A court reviewing
¶ accords due weight defer- ence when the has some agency in an experience area but has not the developed expertise that it in places better position than the court to make judgments Id., regarding the interpretation of the statute. 18. ¶ When due applying weight deference, the court sustains an agency's interpretation if it is not contrary the clear of meaning the statute —unless the court deter- exists. Id. mines that a more reasonable interpretation 31. Finally, a reviewing ¶ court greаt accords weight deference when each of four requirements are (1) met: the agency is the charged by legislature with (2) the duty statute; the administering the agency's (3) interpretation is one of long the standing; agency its employed expertise or specialized in knowledge (4) its forming interpretation; and the agency's inter- consistency uniformity pretation provide and the will applying application ¶ Id., 16. the statute. When weight great deference, will an the court sustain statutory interpretation agency's if even the reasonable interpretation equally is that another court concludes ¶ Id., 17. The court will reverse or more reasonable. agency's interpretation if it is unreasonable —if the directly the federal the or state or contravenes statute legislative contrary intent, if it is to the constitutions, history, purpose if statute, the or it is without a or Id. rational basis. granted, 32. level of deference is Whichever authority
reviewing its own court does abdicate interpret responsibility ¶ 14; Hutson, Id., statute. assessing agency's In inter- 612, 2d 263 Wis. interpret pretation, court must itself the statute to agency's reason- whether the determine Harley-Davidson, 549, Racine 292 Wis. 2d It able. only great weight under deference standard that expertise agency's specialization is so extensive *16 interpretation agency's the court views the as the adopt if it is the most reasonable one. one even inquiry Here, in determin- the focus of our ing great weight deference is whether whether there interpretation "long the is one of stand- Commissioner's ing." experience interpreting OCI extensive has expe- applying generally,13 no Stat. 632.895 but Wis. (7), interpreting requirements the of sub. the rience language specific statutory upon which case this turns. inquired appropriate appeals about The court of 13 See, Com'r, e.g., Ins. Co. v. Ins. Mutual Benefit Life 151 (Ct. 1989). 411, 413-15, App. 444 Wis. 2d N.W.2d 450 level of deference when the issue is within particularly of agency's area expertise specialized knowl- but edge, agency construing specific statutory language for the first time. 34. Wisconsin courts have previously accorded
great weight deference to an agency's
of a
application
See,
familiar statute to a novel set of facts.
Town
e.g.,
LIRC,
Russell Volunteer Fire Dep't.
723,
v.
223 Wis. 2d
(Ct.
1998).
733,
interpretation of this subsection specific is one of "long case, In standing." this the Commissioner, like this (7) court, is interpreting the requirements of sub. for the first circumstances, time. Under these it would make little sense to defer to the Commissioner's statu- tory even if the interpretation court concludes that an equally reasonable or a more reasonable exists. We conclude that a court reviewing should not great give weight deference to an agency's interpreta- tion of a statute when agency is interpreting par- ticular statutory for the first language time.14
14MerсyCare brings to our attention several
decisions
appeals
the court of
which could be read to state that an
agency's experience
in administering
"particular
statutory
affording
scheme" is
agency great weight
sufficient
See,
e.g.,
Co-op
Barron Elec.
v. Pub. Serv. Com'm
deference.
Wis.,
(Ct.
752, 764,
1997);
2d
App.
Wis.
be warranted regulated by statute, but has the issues ence with specific statutory language yet interpreted at Corp., e.g., Dep't See, v. Menasha Wis. Revenue issue. 579, 2d 754 N.W.2d95. We 88, 51, 311 Wis. 2008 WI acknowledge applying situations, due most weight as lead to the same result would deference will charged administering particular with statu- agency has been agency interpreted specific tory when the has not scheme statutory language at issue. persuaded that our conclusion is inconsistent
We are not by MercyCare. In appeals' decisions cited with the court Barron, instance, interpreted had the commission disputes, to similar and on applied provisions of the statute occasion, interpreted the exact one the commission had at least 2d statutory language was at issue in the case. 212 Wis. at Russell, in Town Further, Industry the Labor determining experience whether Review Commission had vast acting scope employment within the at the employee an was and was therefore entitled to worker's time of an accident compensation benefits.
applying weight no deference at all. "Under both due reviewing deference, the deference no court adopt, regard agency's interpretation, for the without interpretation what it views as the most reasonable Harley-Davidson, the Racine 549, statute." 292 Wis. 2d ¶ 20. Applying principles
¶ 38. the here, above we ob- charged by that the serve Commissioner has been legislature approving group disability with insurance may disapprove forms, and the Commissioner a form concluding upon that it violates a statute or is other- 631.20(2). contrary 631.20(1); §§ wise to law. Wis. Stat. experience The has Commissioner substantial inter- preting mandatory coverage provisions. Nevertheless, the Office of the Commissioner of Insurance has never specifically interpreted language (7), of sub. which maternity coverage, addresses developed and it therefore has not expertise places posi- it in a better judgments regarding tion than the court to make interpretation of this statute. We conclude that due weight warranted,15 deference is and we will sustain
15The determination concurrence's about deference misses inconsistency interpretation mark. It confuses an in the ambiguous policy language inconsistency an with the inter concurrence, 86, pretation of the statute. See 94-95. ¶¶ The approved OCI insurance examiner who the 2002 Con- tract about her for approving testified reasons the exclusion for "surrogate interpreted mother services." She the exclusion as addressing expenses pay incurred an insured to for an party carry uninsured third to a child on that behalf. insured's 10, supra, See n.6. When the Commissioner reviewed the 2005 contract as a part litigation, conclude, of this he did not as the concurrence 632.895(7)." contends, "that the 2002 contract violated Con- statutory interpretation if it is not the Commissioner's meaning contrary and no the statute the clear We turn now exists. reasonable more the statute.
Ill *19 regulate §§ 632.71-632.899 ¶ Stat. 39. Wisconsin 632.895(7) disability group contracts. Section insurance maternity coverage. requirements specific forth sets MercyCare's 2002 whether to determine are asked We "surrogate services," mother excludes Contract, which 632.895(7). § requirements Stat. of Wis. the contravenes by begin statutе examination of the ¶ our 40. We statutory legislative setting the relevant forth interpre- history. Next, turn to the Commissioner's we it is reason- whether the statute to determine tation of interpretations Finally, to de- other examine we able. they than the are more reasonable whether termine interpretation by the Commissioner. advanced provisions ¶ Stat. Ch. 632 contains Wisconsin types specific applying contracts. Wis- of insurance to mandatory § forth various sets Stat. 632.895 consin disability policies. group coverages insurance Wis- 632.895(7), maternity regulates which Stat. consin coverage, provides as follows: term Rather, that the undefined currence, he determined ambiguous and in that contract was mother services" "surrogate that ambiguous term MercyCare's application of the that was violated the statute. has not consis- that OCI Although record demonstrates the contract, MercyCare's language
tently interpreted the inconsistency in OCI's no evidence of there is de novo review Thus, no basis for the there is statute. concurrence. undertaken Every group disability provides insurance which maternity coverage maternity provide shall persons policy. for all covered under Coverage required may subject under this subsection not be exclusions or applied limitations which are not to other maternity coverage policy.16 under the 42. The parties and the Commissioner agree the first sentence of the statute an prohibits insurer from selectively offering maternity coverage to some Rather, insureds but not to others. the first sentence an requires insurer that decides to offer ma- ternity coverage anyone under the policy to offer that coverage to all under persons policy. The parties agree mandate of the first sentence is very broad. 43. The centers around parties' dispute
meaning of the second sentence: "Coverage required under this subject subsection not be to exclusions or limitations which are not to other applied maternity *20 sentence, under the From that coverage policy." it is clear that an insurer exclude or limit some aspects of However, maternity coverage. maternity no coverage may "be subject to exclusions or limitations which are not to applied maternity coverage other under the policy." 44. Whether this sentence the exclusion permits all
of services to a of maternity subgroup insureds based on the fact that the insured is as a serving
16 surrounding regulate aspects The subsections other of care, group disability coverage including insurance home skilled care, treatment, nursing kidney coverage disease of newborn infants, coverage grandchildren, equipment supplies of and for diabetes, treatment of mammograms, drugs for infection, of poisoning screening. treatment HIV and lead
133 As the from the text. readily is not apparent mother it that the current likely opined, Commissioner a situation factual surrogacy of was understanding the passed the when by lеgislature contemplated Indeed, 1985.17 1981 and statutory language relevant statutory interpreta of the gravamen The concurrence's The legislative a in the debate. illusory. tion It relies on void legislature's failure discuss concurrence asserts that enacting question" surrogacy when Wis. "complicated social of 632.895(7) legislature indication that the did not Stat. is an acting gestational applied to women as intend the statute to be Concurrence, carriers. positive regarded an issue cannot be as a
Failure to discuss likely far legislature of what the intended. It is more indication surrogacy gestational and legislature did not discuss contemplated by the those issues were not carriers because in 1981 and amended legislature when the statute was enacted in 1985. M, case, Baby A.2d 1227
It was not until the 1988 In re (N.J. 1988), surrogacy political tale of attracted media law." Elizabeth S. attention and "left its mark on American Scott, Commodification, Surrogacy and the Politics 72 Law & (Summer 2009). M, 109,109 Baby In Contemp. Probs. birth a child that mother entered into a contract to conceive and bear couple. The child was conceived would raised another be through using ovum artificial insemination the birth mother's sperm. through intended father's "It was the lens of and the Baby reproductive technology M that innovative use of was this social, political, legal an inter- first scrutinized as issue est." Id. routinely interpret meaning required
Courts are
ques
statutory language
apply
"complicated
it to
social
contemplated
a
involving technology
tions"
that was not
when
See,
Dist,
e.g.,
Rapids
Schill v.
Sch.
statute was enacted.
Wis.
86,
4,
572,
(discussing
327 Wis. 2d
134 demonstrate that the term from the 1980s early cases time to refer to a mother" used at was "surrogate a for another woman's child.18 caregiver was woman who (7) to the was added originally 45. Subsection It extended ma- coverage statute mandatory only: children coverage dependent ternity coverage disability provides Every group policy which any for maternity dependent children and depen- for maternity coverage provide individual shall Coverage required under this subsection dent children. which may subject to exclusions or limitations not be maternity coverage under the applied are not to other policy. explained
The Reference Bureau Legislative "Ma- children not be ternity coverage dependent are not ap- or limitations which subject to exclusions under the maternity coverage policy." to other plied (7) 1985 by The of sub. was broadened scope 56, Family Act the Abortion Prevention Wisconsin drafted 1985. This act was Act of Responsibility Pregnancy on Council Committee Legislative Special disagrees legislature If with factual situation. apply a new pass the issue and it is free to debate interpretation, our legislation amending the statute. 81-1341, slip op. at Knapp, v. No. See Estate of Hoier 1982) ("[T]he
(Wis. 27, decedent was and would Apr. App., Ct. surrogate to her minor brothers to be a mother have continued death"); subsequent illness and of the mother's and sister because (Wis. 18, A.L.R., 81-1292, slip op. App., Ct. June No. K.S.R. v. 1982). reflect this under of the statutes also Portions Wisconsin See, e.g., Wis. Stat. "surrogate." term standing ("For 115.792(l)(a)2 state, judge a child who is a ward a for the child's may appoint overseeing the child's care parents...."). *22 instructions, other the committee had
Options. Among been directed to "make specifically available health insurance for childbirth all instances." coverage Council Legislative Wisconsin No. 16 to the Report on Legislature, Legislation Pregnancy Options, 7, 1985, Oct. at 5. 47. 1985 Act 56 amended the Wisconsin first
¶ sentence to "Every group disability read: insurance which shall provides maternity coverage provide for all covered under maternity coverage persons (7) Thus, the act the reach of sub. policy." expanded from children to "all covered under dependent persons The act did not amend the second sentence policy." (7). Thus, of sub. maternity coverage for "all persons covered under could policy" subject not "be to exclusions or limitations which are not to other applied under the maternity coverage policy." In a memo to the Joint on Fi- Committee nance, Legislative Director of the Fiscal Bureau "[mjater- explained enactment, that under the previous nity coverage specifically required [was] persons other than dependent However, children." the 1985 that, "would if changes require maternity coverage under the all provided policy, persons who are generally covered under the policy must receive cover- maternity The fiscal note age." accompanying the act explained that the amendments required "every group disability insurance policy which to provides maternity coverage any individual the same level to all provide persons covered under the policy." In statute, the Commis- interpreting (7)
sioner recognized the second sentence of sub. permits However, some exclusions and limitations. he recognized also the exclusion by Mercy- written Care attempts exclude covered generally maternity to other insureds on services available surrogate mother. The that an insured sole basis generally question an exclusion of covered was whether acting maternity to those insureds as services the statute. mothers contravenes quoted the definition of 50. The Commissioner *23 contempo- was from a Wisconsin case that "exclusion" rary drafting in exclusion, the of the "An statute: parlance, purpose taking serves the of out insurance persons or events otherwise included within the defined scope coverage." Co., Mut. 92 Bortz v. Merrimac Ins. (Ct. 1979). App. Al- 865, 871, 2d Wis. N.W.2d though typically "persons an takes out or exclusion first events," the Commissioner determined that (7) "taking prohibits persons out of sentence sub. added.) maternity (Emphasis coverage." reсeive who al- Thus, 51. concluded that Commissioner though may an exclude or limit "certain services" insurer long uniformly, "may as it the insurer as does so against subgroup Accord- discriminate of insureds." may ingly, specificprocedures as an insurer make —such abortion, fertilization, elective and amniocente- vitro solely sampling sex sis or chorionic villi policy. benefits under the determination —non-covered procedures in- The insurer exclude for all these that it However, the Commissioner concluded sureds. generally could not exclude services that are covered hospital inpatient under the pre- as care —such post-natal specific subgroup care—for a solely insureds, on the mothers, based becoming pregnant or the method insured's reasons for pregnancy. used to achieve MercyCare Commissioner's asserts that
interpretation statute of the is unreasonable because (7), language permits which conflicts with the of sub. Therefore, some exclusions. contends that unambiguous statutory language permits it to ex- only specific specific subgroups services, clude not but of insureds as well. meaning applica-
¶ 53. The of the statute and its type presented tion to the of exclusion here are not readily apparent statutory from Therefore, text. applying weight deference, the standard for due we interpretation cannot conclude that the Commissioner's contrary meaning See, to the clear of the statute.. supra, ¶ 38. interpretation Further, the Commissioner's
is reasonable because it reconciles the broad mandate of requires sentence, the first granted which be group, to all members of a and the second sentence, which allows exclusions under certain circum- stances. The Commissioner's is also con- legislative history, explains sistent with the "every group disability which *24 policy" "provide
insurance must persons policy." the same level to all covered under the Giving weight ¶ 55. due deference to the interpretation, Commissioner's we will nevertheless de- adopt interpretation cline to the Commissioner's if there interpretation another, more reasonable of the statute. MercyCare asserts that "the statute was enacted to end discrimination based on the insured's status as a mem- spouse ber, child, or not to end all discrimination." It requires only any advances that the second sentence that policy applied uniformly. MercyCare exclusion in its be contends that this of the statute is more reasonable. MercyCare's argument
¶ 56. The crux of is that person "the statute an allows exclusion to take out a long included, otherwise as as under the same eircum- persons included also be all otherwise would stances coverage Thus, it asserts, statute "allows taken out." a for chooses to become be excluded an insured who to equally surrogate long applies mother as as exclusion uniformly become to insureds who chose to all group group member, a mothers, i.e. group dependent spouse, child." or a member's member's MercyCare's interpretation from suffers Initially, not observe that it does some infirmities. we support text of The find direct in the the statute. permits that does not that it an exclusion statute state subgroups long applies among as as it discriminates dependent uniformly group spouses, members, coverage "all Rather, for children. it states subject persons .. . not be covered under the applied to or limitations which are not to exclusions maternity policy." other under MercyCare's problem inter- A second with produce pretation results. is that unreasonable would MercyCare's interpreta- logical conclusion, Taken to its against permit an insurer discriminate tion would long any subgroups as the insureds, as number example, For at oral "uniform." discrimination was per- MercyCare suggested argument, that it be would pregnancy to exclude an insured's fourth mitted —or long pregnancy as exclusion was a second even —as uniformly.19 policies applied a result would to all Such and is of the sentence undercut broad mandate first reasonable. be argument, following exchange occurred At oral MercyCare: court and tween the counsel *25 sentence, say are could we Under that second Q: through three, any coverage providing pregnancies one but for four, your you get you're pregnant number on women who with ... own? 59. The concurrence also offers an ¶ 632.895(7) of the statute. It concludes that Wis. Stat. an insurer permits to excludе maternity coverage "gestational carrier services." Concurrence, 83. It ex- ¶ that it plains reaches this conclusion because maternity care for a gestational carrier is a "contract that expense" inures to the benefit of a third party. Id., ¶ 60. There are three problems with First, concurrence's interpretation. concepts ges- tational carriers and contract are expenses not found in of the language statute. The concurrence carves out an that is exception not supported by the statute's text. Second, although concurrence's analysis is based on the existence of a contract, it relies on a definition of "gestational carrier" that makes no refer- ence to the existence of a contract. The concurrence explains that a gestational carrier is a woman who "receives a transfer of an embryo created by ovum and sperm" who has no genetic with the relationship Id., she baby carries. 83 n.2. Nothing the definition of "gestational carriers" restricts the term's use to a Yes, they
A: I think could. Why?
Q: A: apply uniformly Because that every single exclusion would person policy. Any dependent, under any spouse, any or employee going they got covered pregnant would know in that if time, fourth would be excluded. Later, counsel clarify MercyCare's was asked to position on uniformity: you say If that the Q: second sentence authorizes exclusions and uniformity, really test is it could be the second child.... Cоuld say to unmarried mothers? say
A: I don't mothers, well, think it could for unmarried I don't anything necessarily think language there's in the of this statute provides it but I do believe it [other would run afoul of laws]. discrimination *26 gestational where the carrier intends contract situation baby by parents. the be other See Id. will raised interpretation, ¶ Third, concurrence's 62. the analysis, questions more based on a contract raises entirely It is not clear how its inter- than pretation answers. applied. clear, be is of the statute would What expenses however, the of contract is that existence —the by adopted appear not rationale the concurrence —does yield predictable to a result. Imagine,
¶
instance, a situation where an
63.
for
embryo
impregnated
transfer and shares
insured is
via
genetic material
the child she carries. Could the
no
with
coverage
maternity
insured,
for that
insurer exclude
if
no
and the insured became
even
there was
contract
purpose
parenting
pregnant
express
the
the
with
interpretation,
the an-
child? Under the concurrence's
yes
gesta-
appear
a
to
swer would
be
insured
—the
can
excluded.
tional carrier and
be
Alternatively, imagine
in
fact situation
the
(N.J. 1988),
Baby M,
In re
interpretation are Is the basis of endless. really con- the existence a concurrence's rationale gestational carrier, tract, or it status intent as parent, or all three? How would the concurrence's independent adoptions, affect where providing adoptive there is often a contract that the parents pay maternity will for the birth mother's ex- *27 penses? Balancing Adoption Behne, See Audra the (1996-1997) Triangle, 15 In 49, Pub. Interest ("[UJsually adoptive parents pay the birth mother's fees."). maternity expenses legal pay and Who would for maternity coverage parties the rights if the contested the obligations parentage after the child was happen gestational surrogate born? What would if a mid-pregnancy parent decided to the child, or if the parents intended decided to divorce and refused to accept happen the child? What would if a court con- surrogacy cluded that contract was unenforce- able?20 interpretation 66. The concurrence's writes lan-
guage gesta- statute, into the relies on a definition of tional carrier that is not consistent with the contract- based rationale it advances, and would lead to unpredictable Therefore, results. it is not a reasonable interpretation of the statute. Having
¶ concluded that the Commissioner's interpretation contrary is reasonable and is not to the meaning clear statute, of the we determine that 69.14(l)(h) § Wisconsin Stat. provides that when a child is born surrogate mother, to a the child's birth certificate shall list information about the surrogate mother, and information about the father shall be omitted. If a parental court determines rights, a new birth certificate will be issued. The statutes do not distinguish between surrogacy arrangements traditional gestational surrogacy arrangements. Neither the statutes nor provides our case law specific guidance about how a determina parental tion of rights would be made under these circum stances. and the concur- by MercyCare advanced
interpretations than interpretation are not more reasonable rence Further, no more rea- the Commissioner. advanced Thus, we affirm the exists. sonable interpretation 632.895(7). § Stat. of Wis. Commissioner's an permits the statute 68. We conclude limit services and proce- to exclude or certain insurer limitation to dures, as the exclusion or applies as long However, an insurer not make routine all policies. are covered under maternity generally services that insureds, specific subgroup to a unavailable rea- mothers, on the insured's solely based surrogate or method used becоming pregnant sons MercyCare's attempt pregnancy. Accordingly, achieve its mothers under exclude from 632.895(7), and Stat. 2002 Contract contravenes Wis. *28 to maternity denied MercyCare wrongfully J.M. and C.S.
IV the statute does not 69. determined that Having on the maternity to exclude services MercyCare permit mother, it surrogate an role as a basis of insured's disap- appropriately follows that the Commissioner in the 2005 as the Contract surrogacy provision proved 632.895(7). of- Commissioner also §to The contrary the disapproving an reason for fered additional it re- is too misleading it is because provision —that which the purposes to achieve the for stricted the supports This reason also our conclusion sold. surrogacy appropriately disapproved Commissioner in Contract. the 2005 provision 631.20(1), § Under 70. Wis. Stat. required was to file its 2005 Contract with the Commis- 631.20(2) approval. provides sioner for Section that the may disapprove Commissioner a form if makes one of findings. Disapproval several if authorized the Com- missioner finds that form "violates a statute or a promulgated by rule commissioner, or is otherwise 631.20(2)(d). § contrary Disapproval law." Wis. Stat. is also if authorized the Commissioner finds: inequitable, unfairly discriminatory,
That it is mislead- ing, deceptive, encourages misrepresenta- obscure or tion, including cases where form: misleading Is its because benefits are too restricted the purposes serve which the policy for is sold. 631.20(2)(a). Wis. Stat.
¶ 71. The 2005 Contract "[treatment, excludes supplies surrogate any services, a or for mother or pregnancy resulting your from a service as mother." Unlike the 2002 Contract, it defines the term "surrogate mother" as follows:
Surrogate mother a who, through means woman vitro any fertilization, fertilization or other means of gives to a may birth child which she or not have a genetic to, relationship provides or an individual who gestation uterus aof fertilized ovum obtained from a donor when child parented will be someone other than gives the woman who birth. The Commissioner concluded that this defi- *29 misleading nition was because its are benefits too purposes policy restricted to achieve the for the which Although MercyCare was sold. asserted the definition encompass expenses by was to meant incurred women profited by carrying parent who a child for another to
144 concluded that there is noth- raise, the Commissioner surrogate ing that in the definition of mother Rather, those aside limits the exclusion to situations. statutory being contrary mandate, to from MercyCare's the overly broad and definition was would excluding coverage for the effect have unintended of MercyCare may not have intended insureds that some MercyCare result, would have "broad to exclude. As a any applying to of discretion in its exclusion number they solely why pregnant." on how are women based or MercyCare that the now asserts Commis- disapproving because sioner erred in the Contract deposition at an OCI insurance examiner testified statute, the she if the did not contravene exclusion "any objection have to definition otherwise did not in the 2005 certificate." of explains mother testimony, ignored this that the Commissioner by supported his is therefore not substan- decision However, record. tial evidence question of is a a definition in an insurance of nor Thus, the Commissioner this court law. neither any legal conclusion of witness. bound "surrogate MercyCare's definition appears encompass types different mother" two (1) any through in vitro or insureds: an insured who gives child, fertilization birth to a other means of genetic relationship regardless she has a whether (2) provides a an insured who child; with gestation ovum of a fertilized obtained uterus parented by the child be from a donor when will other than insured. someone category appears all to exclude 75. The first pregnancies. who do or do It would exclude insureds they give genetic relationship the children have "by any The means." to when fertilization occurs birth *30 Commissioner is correct that even if an exclusion for surrogacy permissible, "surrogate were the definition of 631.20(2)(a). misleading mother" is under Wis. Stat. policy's such With a broad exclusion, the benefits are purposes too restricted to achieve the for which the policy is sold. MercyCare acknowledges
¶ 76. that the definition drafting suffers from a error, and it asserts that a comma should be inserted between "donor" and "when parented by the child will be someone other than the gives MercyCare woman who birth."21 Thus, contends, phrase parented by "when the child will be someone gives modify other than the woman who birth" would categories both of insureds. argument, 77. At oral counsel for
explained that if a comma is added to the definition, person "[t]he who would be excluded would be the employee, spouse, dependent actually insured or who pregnant, regardless person becomes of how that be- pregnant, [] pregnancy came purpose if the was for the giving [parent]." that child to some other non-covered explained Counsel further its definition rested upon the intention of the insured at the moment the pregnant: insured became
Q: [W]hat phrase "any does the other means of fertili- zation" mean?
A: I don't know. edited, Once the definition "Surrogate would read: who, mother means a woman through in vitro fertilization or any other fertilization, means of gives birth to a child which she may or may not genetic have a to, relationship or an individual provides who gestation uterus for the of a fertilized ovum donor, obtained from a when the child parented will be someone other than the woman gives who (Emphasis birth." added.) broad,
Q: fairly doesn't it? Seems Yes, it is broad. A: *31 says,
Q: So, isn't that what it you pregnant, if become regardless of how—
A: It does.
Q: or not? genetic —and whether it is surrogacy ver- Right. And that covers traditional A: bringing surrogacy, basically us back gestational sus intending to person the point, the which is whether child to the intended parent, providing or the be parent.
Q: at the time of the fertilization? And it has to be interpret I pregnancy, which would A: The time of time of the fertilization. as the plan on Q: So, pregnant, I I become if at the moment during preg- baby, but at some time keeping the otherwise, I adoption for or nancy, give up decide to would be covered. you I would.
A: believe to cor- the addition of a comma 78. Even with that in conclude draftsmanship, the error we rect overly mother" is "surrogate definition of MercyCare's limits the in of the definition Nothing the text broad. "at the the insured knows exclusion to situations where parented that the child will be moment of fertilization" Rather, else. it appears someone by in any deny the exclusion and could invoke someone the child be parented situation "when will regardless gives than the woman who other birth" — made. that decision was when Further, if even the definition did turn on an insured's intention fertilization," at "the moment of applied exclusion could be to an insured who knows unplanned pregnancy, the event of an she would carry put up the child to term and then the child adoption. Nothing "surrogate in the definition of mother" limits the exclusion ato commercial relation- ship agrees carry where an insured a child for a third party, expecting compensated to be for that service. appro-
¶ 80. We conclude that the Commissioner priately disapproved surrogacy provision in the 631.20(2)(a)l. 2005 Contract under Wis. Stat. In contravening § 632.895(7), addition to Wis. Stat. MercyCare's "surrogate definition of mother" is mis- leading purposes because it is too restricted to serve *32 for which the is sold.
V applying weight sum, In deference, due we conclude that an insurer not make routine mater- nity generally policy services that are covered under the specific subgroup unavailable to a insureds, surro- gate solely mothers, based on the insured's reasons for becoming pregnant or the method used to achieve pregnancy. Accordingly, MercyCare's we determine that application of the 2002 Contract to exclude from cover- age maternity all services for mothers con- 632.895(7). § travenes Wis. Stat.
¶ 82. We also conclude that the Commissioner appropriately disapproved surrogacy provision in MercyCare's contrary 2005 Contract because it is to 632.895(7). § Wis. addition, Stat. In the definition of "surrogate mother" set forth in the 2005 Contract is misleading because the benefits are too restricted to purposes policy serve the for which the is sold. Accord- ingly, judgment we reverse the of the circuit court.
148 court is the Court. —The circuit By judgment reversed. (con- ROGGENSACK, DRAKE J. 83. PATIENCE I conclusion
curring). agree majority opinion's with exclude did not health- MercyCare1 policy that the 2002 and deliveries of the care services for the pregnancies carriers, agree and C.S.21 also J.M. gestational disapproved by was MercyCare policy properly of Insurance. I write con- separately, Commissioner currence, I conclude that the Commissioner's because 632.895(7) § to de subject of Wis. Stat. deference, and because I review, not to due weight novo 632.895(7) ex- MercyCare permits conclude services, carrier even gestational clude did not do so. MercyCare the 2002 though
I. BACKGROUND are The facts from this arises appeal which insureds, C.S., acted as Two J.M. complex. Both infants pursuant carriers. delivered gestational HMO, MercyCare Company and Insurance companies to do business in Wiscon Inc. are insurance licensed convenience, MercyCare. I insurers As a will refer to the as sin. "gestational are carriers." Gestational Both J.M. and C.S. by of Insurance as "a was defined the Commissioner carrier embryo created an who receives a transfer of an woman donor(s). sperm parents from either the intended or a ovum and *33 child gestational genetic carrier shares no material with the A impregnated." Office of the Commissioner with which she is 2006) (Dec. 8, [hereinafter Insurance Final Decision ges Because both J.M. and C.S. are decision]. Commissioner's a broader and mother tational carriers because gestational includes subject interpretations, to various but term carriers, throughout carrier this employ gestational I the term opinion.
arrangements persons parties with unnamed to this litigation. pay refused to for J.M.'s and C.S.'s prenatal, delivery postnatal asserting care, and that the policy 2002 healthcare under which both were insureds pregnancies did not healthcare cover services their and deliveries.
¶ 85. J.M.'s and C.S.'s bills for the healthcare provided paid by persons services to them were other complained than Nevertheless, the insureds. C.S. to the Mercy- Office of the Commissioner of Insurance that pay relating Care refused to for the healthcare services pregnancy delivery. complaint brought to her C.S.'s MercyCare's nonpayment to attention of the Com- missioner of Insurance.3 re-examined 86. The Commissioner the 2002
policy, previously approved, which his office had determined that violated Wis. Stat. 632.895(7)'s mandatory coverage maternity ser- "[ejven The vices.4 Commissioner also concluded that if surrogacy properly services could be excluded, the language 2002 contract is unenforceable because the ambiguous."5 approve The Commissioner did not complex, 2005 contract because he found that it was too public.6 which he concluded could mislead the II. DISCUSSION A. Standard of Review appeal, ¶ 87. On we review the decision of the Commissioner of Insurance, not that of the circuit court. See Nat'l Motorists Ass'n v. the Comm'r Office of
3 Id. at 31.
4 Id. at 39.
5 Id.
6 Id. at 43. *34 Ins., 308, 10, 240, 2d 2002 WI 259 Wis. 655 App ¶ of 179. N.W.2d construction of the requires 88. This appeal
¶
healthcare
We construe an insur
policies.
law. Peterson v.
Pa.
contract as a
of
question
ance
Life
Co.,
Ins.
166,
11,
768,
265 Wis. 2d
669
2003 WI App
¶
do
without deference
independently,
N.W.2d 151. We
so
Racine
Harley-Davidson,
interpretation.
to the agency's
&
86,
114,
Hearings
Appeals,
Inc. v. Div.
2006 WI
¶
549,
184
J. concur
(Roggensack,
292 Wis. 2d
717 N.W.2d
PSC,
End-User Gas Ass'n v.
citing Wis.
218 Wis. 2d
ring,
1998)).
(Ct.
558, 565,
on
as
of law.
632.895(7),
questions
which we also review
DH&FS,
v.
90,
6, 264
2d
Buettner
2003 WI
Wis.
App
three levels
700,
282. We
one of
may apply
663 N.W.2d
applica
deference to an
and
agency's interpretation
(1)
deferenсe,
to a
no
often referred
tion of a statute:
(2)
deference,
we
review;
due
where
weight
de novo
and
statutory interpretation
appli
affirm an agency's
cation if it is reasonable and another
interpretation
(3)
deference,
reasonable; and
great weight
not more
appli
affirm an
agency's interpretation
where we
reasonable,
conclude that
cation if it is
even when we
UFE Inc. v.
is more reasonable.
another
(1996).
LIRC,
274, 284-87,
2d
of Wis. Stat. statutory interpretation no defer the Commissioner's ence. Usually,
¶ not matter to the ultimate 93. it does applies this court of a statute whether weight in review because deference or a de novo due Cnty interpret Dane v. the statute. both cases we 293, 9, 19, 2d 759 N.W.2d LIRC, 2009 WI 315 Wis. agency parameters that an However, we have set weight satisfy defer- in order to be accorded due must in varying employed fact-sets than is application of a statute to Roggen- statutory interpretation. Patience Drake the initial sack, Doctrine Elected to Decide: Is the Decision-Avoidance Appropriate in This Court Last Weight Great Deference 2006) Resort, 541, (explaining Marq. (Spring L. Rev. 550-52 agency questions on of law giving that deference to decisions regard agency's application of a suggested first to an was later, expla- without further particular statute to a fact-set well). nation, statutory interpretation as encompassed 8Majority op., UFE, 2d at 286-87. an agency
ence. 201 Wis. When has deference, not satisfied the for due parameters weight acknowledge we should the level of deference we employ. statutory 94. The Commissioner's interpreta- 632.895(7) §
tion and of Wis. Stat. application present First, on the facts. following undisputed the Office of Insurance charged by Commissioner of the legis- 632.895(7). Second, lature with administering Office of the Commissioner of Insurance approved under J.M. and C.S. MercyCare policy, which were insured, vehicle, before it was used as an insuring the 2002 thereby concluding policy complied with *36 632.895(7). 632.895(7) Third, § § the current version of was in effect when the Commissioner's office initially Fourth, the contract. in approved resolving C.S.'s the Commissioner concluded that the same complaint, 632.895(7) § 2002 contract it had under approved 632.895(7). § violated 95. The Commissioner has met the first param-
¶ eter for deference in that his office has been weight due the with Wis. Stat. charged by legislature administering 632.895(7). However, § the Office of the Commissioner stat- has demonstrated no experience interpreting i.e., facts, in ute a consistent fashion based on the same otherwise, the 2002 insurance MercyCare policy. Stated the Office of the Commissioner of Insurance has once being the 2002 as com- approved policy with the statutes and has once concluded that pliance Therefore, same violated the statutes. policy this agency parameter has not satisfied second court for due deference. Accord- weight has established I no deference to the Commissioner's inter- ingly, give 632.895(7). § pretation application 632.895(7) § of Wis. Stat. B. Interpretation the lan with interpretation begins Statutory 96. ¶ Grunke, 2008 v. State legislature. chosen guage If the 439, 2d 752 N.W.2d 82, 21, 311 Wis. WI ¶ ordinarily its face we on plain of the statute meaning v. Circuit ex rel. Kalal (citing Id. State stop inquiry. 633, 2d 58, 45, 271 Wis. 2004 WT Cnty, Court Dane for 110). if "However, 'capable a statute N.W.2d persons well-informed by reasonably understood being ambiguous, then the statute is senses[,]' or more in two its to discern extrinsic sources we consult may Kalal, Grunke, 439, 22 (quoting 311 Wis. 2d meaning." 50). 47-48, 633, 271 Wis. 2d ¶¶ 632.895(7), provides: Wisconsin Stat. disability Every group MATERNITY COVERAGE. maternity coverage provides which insurance persons covered maternity for all provide shall this subsec- Coverage required under policy. under the limitations subject to exclusions or tion not be maternity coverage applied are not to other which policy. under the The defined in ch. 632. is not
"Maternity coverage" a request circumstances under which varying *37 also are not arise relating pregnancy may healthcare "maternity in ch. As a consequence, addressed to different meanings have different coverage" may people. well informed reasonably be "maternity coverage" For must example, services for delivery postnatal defined as prenatal, Or, are the health- become pregnant? all who women of a necessitated the contract care services that are of meaning carrier not included within gestational "maternity coverage" they accurately because are more expenses characterized as the contract of a woman who agreed carry a child to which she has contributed no genetic rights material and to which she claims no of parentage?9 otherwise, Stated while the healthcare expenses J.M. and C.S. incurred were related to their giving they expenses birth, were not incurred to become they expenses they Rather, mothers. were the contract fulfilling аgreements par- incurred their with third ties. 632.895(7) §
¶ 99. A construction of Wis. Stat. that concludes that the cost of the healthcare services expenses J.M. and C.S. received were contract is consis- tent with the facts of this case. It is uncontested that as gestational genetic carriers both women contributed no they material to the fetuses carried and that the health- ($16,774.64) ($18,510.84) care bills of J.M. and C.S. paid by parties. any pay- have been third Therefore, by MercyCare gestational ment for the costs of these carrier services will not inure to the benefit of the persons insureds, rather, but to the benefit of are who by MercyCare. not insured reasonably persons 100. Because well informed
could come to the conclusion that Wis. Stat. 632.895(7) § requires that healthcare services must be Scott, See Elizabeth Surrogacy S. and the Politics of (Summer Commodification, Contemp. 72 Law & Probs. 109 2009) (discussing the social of concerns the various forms of surrogacy, including gestational carriers); see Anna L. also Benjamin, Implications The Using Expense the Medical §213 Deduction I.R.C. Reproductive to Subsidize Assisted 2004) Technology, 79 Notre Dame L. (April (question Rev. 1117 ing expenses creating whether the through expensive a child reproduction assisted qualify expense should aas medical 213). meaning deduction within the of I.R.C. *38 pregnant provided are also insureds women who to all gestational apply to it does not to the conclusion or expenses, the stat- contract services, are which carrier ¶¶ ambiguous. Kalаl, 633, 2d 47-48. 271 Wis. ute meaning, attempting I Accordingly, to discern its Id. at 50. extrinsic sources. consult underlying history legislative Wis. ¶ 101. The 632.895(7) legisla- gives § indication that the no Stat. gestational car- acted as who considered insureds ture "maternity coverage ser- for it mandated riers when (7) to its current amended was vices." Subsection began by language 56, 33. It as Act 1985 Wisconsin Legislative Assembly Reference Bureau's The Bill 510. (7) provides has to subsection that the amendment note coverage maternity requiring for "the same the effect of employee dependent spouse as for a female of a male a explains: employee." Another note disability every group insurance requires Current law coverage dependent chil- provides which both maternity coverage provide to also maternity dren and children.... coverage dependent for disability every group requires This subsection maternity coverage to provides policy which insurance maternity level of provide the same any individual policy. covered under coverage persons to all September Legislative Staff note of Council Wisconsin policy- person Therefore, if who was not a 23, a dependant policyholder spouse child or the holder, of a a policyholder, insured, an nevertheless was of a but maternity coverage required. pregnant, became coverage require legislature for could 102. The gestational if However, carrier services. gestational were considered carrier services complicated legislature, social it is such because *39 there question, surely would have been some indication of such a But, discussion.10 there is not. I Accordingly, conclude that although the of a pregnancy gestational carrier who carries a child under a contract with a third party mandated, could be there is no indication that the 632.895(7). did in legislature so Wis. Stat.
C. MercyCare Policies
1. 2002 policy 103. The 2002 MercyCare policy provides relevant part:
PREGNANCY BENEFITS
Non-Covered Services:
® Surrogate mother services.
(cid:127) Elective abortions.
(cid:127) Maternity services received out of the service area in days
the last pregnancy 30 of prior without autho- rization from the Plan except emergency. in an Prior authorization necessity. is based on medical (cid:127) (CVS) Amniocentesis or chorionic villi sampling
solely for sex determination. 104. MercyCare term, relies on "Surrogate services," mother for its exclusion of coverage for J.M.'s and C.S.'s prenatal, delivery postnatal care. Surro- Scott, generally See supra (discussing note the various types surrogacy, including gestational carriers, and how these types pregnancies may relate to current parentage concepts). abortion in the 2002 policy. is not defined mother services
gate of healthcare encompass variety a That term could case. services, not at issue in this some of which are mother services example, surrogate 105. For the extensive hormone therapy could include in order implantation zygotes11 required prior a child to which she carry carrier to gestational permit Or, it refer to material. could provided genetic has no has for a who provided similar treatment she will impreg- with which be zygote ovum It cover the usual prenatal, nated. could also be read to has care after delivery pregnancy and postnatal *40 carries child under for woman who a a begun pregnant than encompass Or it more any surrogacy. of could type circumstances, or circum- perhaps one of those some I not mentioned. stance that have in defining 106. on this lack of precision Based ¶ 2002 services, I conclude that surrogate mother The is also concluded ambiguous. Commissioner policy MercyCare ambiguous is because 2002 surrogate define mother services.12 adequately does An unde- ambiguous policy, 107. insurance with ¶ aby construed it would be understood terms, fined is as 62,WI Bagadia, reasonable insured. v. 2008 Acuity 197, 750 817. 13, Policy language 310 2d N.W.2d Wis. ambiguous and is is construed that relates insured, affording of as Id. coverage. in favor did not define surro- Because as provided mother services healthcare services gate a child she carry a contracted to to which woman who vitro, egg accomplished in When fertilization sperm a resulting egg of the and the with which combination zygote. is the impregnated woman Commissioner's decision at contributes no genetic material and to whom she as- serts no rights I parentage, construe the policy against MercyCare and conclude that the costs of the healthcare provided to J.M. and C.S. must be born by MercyCare.
2. 2005 policy13 109. The 2005 MercyCare policy provides in rel- evant part:
PREGNANCY BENEFITS
Non-Covered Services:
(cid:127) Treatment, services supplies or surrogate from your ser- any
mother or pregnancy resulting vice aas mother.
SURROGATE MOTHER
Surrogate mother who, means a through woman vitro any fertilization or fertilization, other means gives birth to a child which may she or not have a *41 genetic relationship to, or an provides individual who a gestation uterus for the of a fertilized ovum obtained from a donor when the child will parented be someone other than the gives who[] woman birth. 13Neither J.M. nor C.S. claim coverage under the 2005 policy. Therefore, though even the Commissioner has held that the policy 2005 compliance is not in 631.20, § with Wis. Stat. his decision does not payment affect Furthermore, to J.M. and C.S. since policy the 2005 has not approved by been the Commis sioner, it cannot have been insuring used as an vehicle or have affected any other insureds.
159 in its ambiguity if the recognition As in of 110. in the pending was complaint 2002 while C.S.’s policy, Insurance, MercyCare of the Commissioner Office of The 2005 2005 for consideration. the policy submitted mother, out above. as set surrogate defines policy of the approval The Commissioner denied under Stat. authority his Wis. based on policy 63l.20(2)(a)3.14 explained: § The Commissioner only trying MercyCare argued that it is has
While personal health coverage provide to to insur- limit its expenses incurred in from "not cover activities ance and expenses or are incurred on profits which the insured . . policy.". not covered undеr the persons behalf of in the 2005 definition of nothing [T]here is Contract's those mother limits situa- Rather, "permits argues, as the definition tions. OCI in applying broad its exclusion to discretion why any solely based on how and number women they pregnant," and further has the "unintended are they may restricting coverage to some insureds effect of policy The fact that the or not intend to exclude." implications drafter does understand the language policy supports finding in its a own unnecessarily language complex. verbose or 631.20(2)(a)3. Stat. permits Wisconsin a insurance disapprove proposed Commissioner "unnecessarily policy "finding" policy upon I agree with complex language." verbose or the Commissioner. The definition that Mer- finding in the 2005 does not cyCare employs accomplish to achieve and MercyCare says hoped purposes insured. easily could mislead a reasonable at 43. Commissioner's decision
III. CONCLUSION agree majority In conclusion, I with the opinion MercyCare policy that the 2002 did not exclude gestational pregnancies and carrier services for the agree deliveries of J.M. and IC.S. also that the 2005 MercyCare policy properly disapproved by was separately, Commissioner of Insurance. I write in con- currence, because I conclude that the Commissioner's 632.895(7) § subject of Wis. Stat. to de weight review, novo not to due deference, I and because 632.895(7) permits MercyCare conclude that to ex- gestational clude services, carrier even though MercyCare policy the 2002 did not do so.
¶ 114. I am authorized to state that Justices AN- NETTE KINGSLAND ZIEGLER and MICHAEL J. join GABLEMAN this concurrence.