By: Marla Neufeld, Esq.
COVID-19 is causing a ripple effect worldwide and has not spared the surrogacy world. As a former intended parent, I know that surrogacy during ‘normal’ times is an involved process. Now having to contend with worldwide travel restrictions, closed courthouses, and limited governmental staff at critical offices such as Vital Records, passport, and Social Security Administration offices, the surrogacy process faces unprecedented challenges.
EMBRYO TRANSFER CANCELLATIONS AND DELAYS – LEGAL AND MEDICAL IMPACTS
Priorities for everyone involved include impacts COVID-19 could have on the health of surrogate and/or baby if a surrogate contracts the virus. Medical findings on this topic are still emerging. The American Society for Reproductive Medicine (“ASRM”) is continuing to issue guidelines to those participating in assisted reproduction. Initial ASRM guidelines included the suspension of new cycles and cancelling many embryo transfers and current recommendations provide guidelines on when to resume medical care and are determined based on the specific region and healthcare system capacity.
Cancellations and delays of embryo transfers have numerous implications on surrogacy agreements. Surrogates’ schedules may not allow indefinite time for COVID-19 to pass before committing to the surrogacy process. Being re-matched with a new surrogate could cause further delays and expense for the intended parents when cycles start again.
Surrogacy agreements should be re-evaluated in light of COVID-19 delays. They may have monthly hold fees owed to surrogates if there is a delay in an embryo transfer. If a doctor restricts a surrogate from working because of COVID-19, it may trigger the intended parents’ obligation to pay her lost wages. Surrogacy agreements may need to be modified to delay certain payments so the intended parents are not making reoccurring payments if there is delay to the cycle. Consult with your surrogacy attorney to determine what contractual obligations need to be addressed for any new surrogacy agreement or how the COVID-19 delays impact existing agreements.
Health insurance policies for surrogates must be analyzed to determine that if a surrogate contracts COVID-19, if the policy will cover such medical care. Some states initiated a special Open Enrollment to apply for health insurance and will be important for anyone considering a new cycle or if a surrogate does not have appropriate health insurance. Further analysis is warranted whether life insurance and accidental health insurance policies purchased for surrogates by intended parents would cover death or injury due to COVID-19.
TRAVEL AND CLOSURE IMPACTS ON ABILITY TO ATTEND DELIVERY AND RETURN HOME FOLLOWING BIRTH
Can’t Get In:
Due to COVID-19 travel restrictions, international intended parents with expecting surrogates in the United States are facing great difficulty travelling to the United States to welcome their children to the world. These parents need to consider appointing someone who resides in the same state as the surrogate to be a temporary health care designee and give them power of attorney to care for the baby until they can travel to the United States. In some instances, intended parents are appointing their surrogate with these temporary powers. Additional documentation is required to protect parental rights, set guidelines for the vested temporary powers of the appointed designee, and to ensure that the designee has money and supplies to care for the child and herself. Coordination will be needed with hospitals to ensure the appointed designee can invoke these temporary powers on behalf of the intended parents. Coordination with hospitals is important in advance of the birth to determine who can be the surrogate’s support person for the delivery since many hospitals are limiting those allowed in the hospital.
Can’t Get Out:
Alternatively, many international intended parents who traveled to the United States for the delivery of their baby are unable or facing difficulty travelling home with their newborn. As such, borders open subsequently reinstating international travel, U.S. passports may be challenging to obtain as the Department of State has been issuing passports only on an emergency basis.
Consult with your surrogacy attorney on the current process to obtain a birth certificate following the birth, as there are many delays due to office and courthouse closures, limited staff and remote workers. A delay in obtaining a birth certificate may delay the intended parents’ ability to obtain a passport and delays with the issuance of social security numbers may impact the ability to place the baby on the intended parents’ health insurance.
COPING WITH ANXIETY AND COVID-19
Per Boca Raton based licensed clinical social worker and member of ASRM, Karyn Rosenberg, LCSW, PMH-C (www.karynrosenberg.com):
Here are some ways that may assist intended parents and surrogates continue to share their journey during this challenging time. The use of technology through FaceTime and Zoom will help by sharing updates at appointments; maintain routine check-ins, and having ongoing communication. Creating routine and structure for the day will assist by maintaining normalcy. Focusing on areas where one can feel a sense of control, such as limiting the news and social media, can be very helpful. Relaxation techniques such as meditation apps are helpful tools to achieve more peace, improve mindfulness and offer breathing techniques. Finally, utilizing a healthy approach to self-care such as eating healthfully, getting proper rest, walking outside, and listening to music will help both intended parents and surrogates make it through this very exciting time of family building with grace and resilience.
Surrogacy attorney, Marla Neufeld, Esq. and the full service legal team at Greenspoon Marder LLP will remain available to assist intended parents and surrogates in dealing with impact from COVID-19 throughout every phase of surrogacy negotiations and contracts. Greenspoon Marder LLP has specialized attorneys who can assist with issues arising from COVID-19 in the surrogacy context – including surrogacy, trust and estates, and immigration law.
