By Marla Neufeld, Partner
The COVID-19 virus has caused a ripple effect across the globe, and this impact has not spared the surrogacy and assisted reproductive technology world. The surrogacy process always requires planning with an established team of lawyers, reproductive doctors, agencies, insurance providers, etc., however during these unprecedented times, additional planning and steps are required to plan for any new surrogacy cycles and for surrogates who are currently pregnant and expecting deliveries soon.
Changes in American Society for Reproductive Medicine Guidelines on Embryo Transfers
The American Society for Reproductive Medicine (“ASRM”) issued guidelines on March 17, 2020 and updated on March 30, 2020 regarding the precautions and recommendations provided to those participating in assisted reproduction. ASRM guidelines are non-binding for reproductive clinics but are a form of the best practices to follow.
Per the ASRM guidelines:
This ASRM guidance is in response to the Coronavirus (COVID-19) global pandemic. Our goal is to provide practices with recommendations that guard the health and safety of our patients and staff, and recognize our social responsibility as an organization and as a community of providers and experts, to comply with national public health recommendations. This guidance recommends the following:
Suspend initiation of new treatment cycles, including ovulation induction, intrauterine inseminations (IUIs), in vitrofertilization (IVF) including retrievals and frozen embryo transfers, as well as non-urgent gamete cryopreservation.
Strongly consider cancellation of all embryo transfers whether fresh or frozen.
Continue to care for patients who are currently “in-cycle” or who require urgent stimulation and cryopreservation.
Suspend elective surgeries and non-urgent diagnostic procedures.
Minimize in-person interactions and increase utilization of telehealth.
Based on these ASRM guidelines, consult with your reproductive doctor to determine whether an embryo transfer cycle will occur as there may be delays on moving forward with any new or existing embryo transfer cycles. Reproductive doctors may choose to follow the ASRM guidelines but are also governed by applicable state or other regulations that may direct the reproductive clinics to stop operations due to stay at home orders.
Delays in embryo transfer cycles can have numerous implications on the terms of surrogacy agreements. For example, some agreements have monthly hold fees owed to surrogates if there is a delay in an embryo transfer cycle. Also, if a reproductive doctor restricts a surrogate from working because of COVID-19 concerns, it may trigger the intended parents’ obligation to pay a surrogate’s lost wages. Consult with your surrogacy attorney to determine what contractual obligations may need to be addressed for any new surrogacy agreement or how the COVID-19 precautions and delays caused by the virus may impact your existing surrogacy agreements.
Health Insurance, Life Insurance, and Accidental Health Insurance Concerns with COVID-19
Health insurance policies for surrogates will need to be analyzed on a case-by-case basis to determine if a surrogate contracts COVID-19, whether the health insurance policy will cover such medical care. Pursuant to surrogacy agreements, intended parents are responsible to pay for any uncovered pregnancy related medical expenses so should a surrogate get sick from COVID-19, it will need to be determined whether it is pregnancy related and whether her health insurance will cover her treatment. This could potentially expose intended parents to pay additional medical expenses not typically contemplated in times before COVID-19. Some states have initiated a special open enrollment period to allow more people to apply for health insurance which may be important for anyone considering a new cycle, or if a surrogate does not have an appropriate health insurance policy. Another analysis will need to be whether life insurance policies and accidental health insurance purchased for surrogates by the intended parents at the beginning of the surrogacy process would cover a death or injury due to COVID-19.
Travel Restrictions and Court Changes and Impacts on Surrogacy
Every day the travel restrictions are changing globally due to COVID-19. The impact this causes is for both international and domestic intended parents who may have difficulty making it to the birth of their child. Additionally, international and domestic borders may be closed restricting any travel plans to return home. There is an exception within the travel restrictions issued as follows which could apply to intended parents trying to travel into the United States, however the implementation of this rule has varied depending on the country permitting the travel into the United States:
…any alien who is the parent or legal guardian of a U.S. citizen or lawful permanent resident, provided that the U.S. citizen or lawful permanent resident is unmarried and under the age of 21
It is unclear whether travel into the United States will still be permitted even with this exception in place as there is great discretion in permitting people to travel. There is the possibility that if travel is permitted, that the traveling parties may need to be quarantined upon their arrival which could further delay getting to the baby upon birth.
A further travel concern is not only the intended parents arriving in the United States or the state of the birth of the child, but the intended parents’ ability to travel home with the baby once born. There may be additional travel logistics to deal with caused by closed borders and doctors’ orders on allowing an infant to travel. On March 18, 2020, the Department of State announced the suspension of routine visa services worldwide. There is a limited exception to issuing emergency United States passports when travel plans are within a certain period of time however there is great discretion if issuing these types of emergency passports to intended parents.
What Can You Do to Prepare for Upcoming Surrogacy Delivery?
For intended parents who have a birth approaching soon, it is important that you start the planning process immediately to determine how intended parents will be able to make it to the hospital in time to attend the delivery and have the baby discharged to the intended parents. Keep your surrogacy agency (if any), and attorney updated on your travel arrangements to ensure the smoothest delivery process as possible under the current circumstances. It may be necessary for intended parents to travel to the location of the birth hospital much sooner than anticipated in the event of travel bans or quarantine periods following any travel.
Intended parents may need to consider appointing a power of attorney and/or a health care designee to take certain actions as it relates to the birth such as making medical decisions for the baby and taking the baby home if intended parents are unable to make it in time to the delivery. If intended parents are unable to make it to the delivery, it may be necessary for the intended parents, the surrogate, and any power of attorney to have a discussion in advance of the birth to determine many of the birth logistics including, but not limited to:
The parties should exchange contact information with one another and with the power of attorney;
Whether the parents want the baby to have the following shots: Vitamin K, erythromycin (eye drops), hepatitis B shot, and any other shots recommended by the doctors
Whether the surrogate is going to pump breast milk (and supplies need to be provided)
Whether cord blood is going to be stored
Whether a circumcision should be performed if it is a boy
Whether the baby can be placed on life support if needed
Which support person (if any if permitted by the hospital) will be allowed in the delivery room
In preparing for any upcoming surrogacy deliveries, to determine the process and timing for the issuance of a birth certificate, consult with your surrogacy attorney to see the current status of court proceedings and Vital Records offices remaining open, as each courthouse and Vital records office has different levels of closure, limited hours and limited staff, etc. Such birth certificate is required to issue a passport for the child (if needed for international travel), and in many cases needed to place the baby on the intended parents’ health insurance plan.
The ability to obtain a social security card for the baby is also restricted at this time as all Social Security Administration offices are closed with limited staffing. Intended parents may need a social security number in order to place the baby on their health insurance plan. The Social Security Administration’s office is only issuing social security cards for emergencies. If an intended parent needs a social security number on an emergency basis, the intended parents must demonstrate that issuing a social security number is an emergency. Intended parents must also provide certain original documentation identification to a local office to review and determine if social security will issue a social security card.
Surrogacy attorney Marla Neufeld, Esq. and the legal team at Greenspoon Marder LLP remains available to assist intended parents and surrogates in dealing with the impacts from COVID-19 in a surrogacy arrangement. Greenspoon Marder has a full team of lawyers in various practices of law who can assist with many of the issues arising from COVID-19 in the surrogacy context – including surrogacy, trust and estates, and immigration law. Marla can be reached at firstname.lastname@example.org.