Wondering how your surrogacy journey will be impacted by COVID-19? Here’s a few things you need to know (with a focus on my home state of New Hampshire):
#1: IVF Clinics are opening back up
Some fertility clinics were able to remain open throughout the pandemic, but most closed to all but the most urgent of procedures. We are now (in May 2020) in a phase where most clinics are operational, to some degree. Some are already scheduling embryo transfers, but others have put transfers off until a later phased in their re-opening plan. As intended parents, your decision to select or stay with a specific clinic may be influenced by their re-opening plan.
#2: Things will be different for surrogacy
We will continue to see social distancing models applied to the surrogacy process. Expect more time on the phone and video-conference and less time face-to-face with all the other people involved in your surrogacy journey. When an in-person meeting is unavoidable, such as for embryo transfers, expect limits on the number of people allowed in the facility as well as mandatory face masks and screening for a high fever or other symptoms.
#3 It won’t be fair
You may find as intended parents that you are excluded from participating in-person in important milestones, such as the embryo transfer, ultrasounds, and (worst of all) the birth. I’m not going to try to make you feel better about that–it just all around sucks. But it’s the reality we live in now. Your only other option is to wait it out until the pandemic is over, but I know you’ve already been waiting for years. None of this is fair. But’s it’s our new reality.
If you are going to Boston or Connecticut for your embryo transfer, be prepared for very stringent rules. Fortunately, New Hampshire has been spared the worst of the pandemic (crossing my fingers). Hopefully we will have more leeway for those parts of the surrogacy process that can take place back here in New Hampshire, such as ultrasounds and the birth.
#3 Your doctor cannot tell you all of the medical risks of surrogacy
As an attorney, I can explain the legal risks of surrogacy to my clients. Your social worker will explain the mental health risks of surrogacy to you. And normally your doctor can explain the medical risks to you. But your doctor cannot fully do that now because we just don’t know what those risks are. So intended parents and surrogates are left in the terrible predicament of proceeding with the unknown or waiting.
As a side note, surrogacy contracts usually require you to accept all risks-whether known or unknown. This means the surrogate accepts the unknown risks of COVID-19 to herself, and the intended parents accept the unknown risks to the baby.
#5: Location matters even more now
Your selection of a fertility clinic may be influenced more by location than ever before. We used to think in terms of the hassle and expense of travel when working with out-of-state IVF clinics. These would be balanced against factors such as affordability and success rates. Now, we have to factor in the prevalence of COVID-19 in a given location also.
Would you be OK with your surrogate traveling from New Hampshire to Massachusetts right now? Or are you more comfortable with a Maine medical center? What about Vermont?
As a surrogate, would you be comfortable getting on a cross-country flight right now? Or do you need a fertility clinic within driving distance? These are some of the new things we have to think about in the COVID-19 era.
#6 Surrogacy agencies are operating
Some good news in all this is that many surrogacy agencies (including New England Surrogacy) are still operating. Operations have moved to more virtual though. This means you can expect video-conference match meetings, instead of in-person, for example. And you probably cannot just stop by the surrogacy agency’s office to say “hello” or to show off your new baby.
#7 Legal contracts
The good news is that the legal contract process hasn’t really changed at all. Most of us surrogacy attorneys are used to working with clients remotely because many of our clients are not local to us anyway. We already know how to do everything remotely. So transitioning to contactless contracts has gone pretty smoothly.
#8 Mother may I?
If your surrogacy contract was written before the pandemic, chances are it did not specifically reference your obligations as a surrogate in the case of a deadly pandemic. However, your contract should contain expectations about your behavior, in general, and most also contain a force majeure clause (fancy legal term for what happens in a dire unpredictable emergency). In addition, many (most?) states have issued emergency orders to guide the conduct of residents and visitors during this emergency. In New Hampshire, these emergency orders are issued by the Governor, although this may vary from state to state.
So read your contract, check out your state’s emergency orders, talk to your doctor, and touch base with your lawyer to find out what your obligations are during your pregnancy.
#9 Courts are semi-closed
While the Circuit Court in New Hampshire is still operating, the courthouses are themselves closed to the public. The only exception is for emergency matters. Surrogacy related matters are not on the list of matters that the courts have designated as emergencies. So you should assume that the court process will be done in the normal course of business.
While, under the law, the courts have 30 days to process a New Hampshire parentage petition, the reality is that right now these deadlines may not be met. Expect the court process to take longer than we wish it would. And keep in mind that I cannot just walk into the courthouse to chat with the clerk or get a copy of your parentage order–I have to do everything by mail.
There may be rare situations where your case can be designated as an emergency requiring immediate processing, such as if your baby is very ill. This is something to talk about with your lawyer.
#10 No room at the inn
Update: Beginning June 5, 2020, short-term lodging is once again open to the public pursuant to Stay at Home 2.0. Out-of-state guests will need to self-quarantine at home before checking-in to the hotel, motel, Air BnB. or other short-term lodging. Be prepared to attest to the fact of your quarantine during the check-in process. Once additional piece of good news: reservations can now be made online.
Some states have placed restrictions on the rental of hotel rooms and other short-term lodging, such as Air BnB’s. In New Hampshire, specifically, Governor Sununu has issued Executive Order #27 which restricts lodging rentals to essential workers and vulnerable populations. The order also places restrictions on the manner of making a reservation–intended parents will need to call the hotel directly to reserve a room. Expect the process of making a room reservation to be more complicated than in the past, so please get your reservations in order well in advance. You should also be aware of Governor Sununu’s request that individuals coming in from out-of-state quarantine for 14 days, so keep that in mind when making travel plans.
#11 At the hospital
I said it before, but it bears repeating–intended parents need to be prepared that they won’t be allowed into the hospital for the birth. And there may be nothing anyone can do about it. So let’s talk about the things you can control.
All intended parents need to have their parentage established in some manner. Depending on the situation, this can take place in the form of a legal contract, parentage order, pre-birth order, affidavit of paternity, post-birth order, or adoption (phew–that’s a lot of options!). It’s important to understand whether your parentage is being established before or after the birth. Your lawyer can explain to you how it is being done in your case.
If your parentage is established before the birth, you are entitled to make all medical and other decisions for your child immediately after the birth. This is because you are the legal parent. These decisions include things such as naming the child, deciding whether your child will have formula or breast milk (if your surrogate is willing to pump), consenting to vaccinations, deciding on circumcision for a boy baby, and so forth. Even if you are not allowed in the hospital (and be prepared that you won’t be), the doctors and nurses should be communicating with you about your baby. And the baby should be discharged directly to you when he/she is ready to go home.
If your parentage will be established after the birth (and there are legitimate reasons to do this in some cases), then it gets more complicated so you should definitely discuss that with your lawyer.
#12 Hurry up & wait
It’s not just the courts that are processing things slowly. Gone is the time I could walk into Vital Records and get a copy of your baby’s birth certificate and then walk over to the Secretary of State’s Office to get an apostille placed on it. Now, I have to mail in a request to Vital Records, and then wait (and wait and wait) for the birth certificate to arrive. Then I mail the birth certificate to the Secretary of State’s Office and wait some more. Finally, I get the final birth certificate back in the mail. While I know our government employees and mail carriers are working diligently to get things done, the process itself is going to take longer.
The good news is the domestic intended parents usually don’t need a birth certificate right away. International intended parents, however, will need the birth certificate to get baby’s passport–you should be prepared to spend more time in New Hampshire than originally anticipated.
#13 International travel woes
For international intended parents, surrogacy has gotten a lot more complicated, with the many issues surrounding visas and passports. Expect difficulty in getting into the United States for the birth, and expect difficulty in leaving the United States with the baby. My colleague Rich Vaughn has written more about the logistical hurdles for international intended parents. Bottom line is international intended parents need a backup plan. And a backup to the backup plan. At the very least, plan on spending more time in the United States than previously expected.
For surrogates who are not yet matched, now is the time to think about whether you are wiling to work with international intended parents, given the extra hurdles involved. It’s OK to tell your agency that you prefer to match with domestic intended parents.
#14 Egg Donation
If you are pursuing surrogacy with donated eggs, you may find that your fertility clinic will not allow your selected donor to undergo a fresh cycle. The reason is that they don’t want to expose the donor to the risks of contracting COVID-19 in the process. Your only option may be to use a frozen egg bank, which poses no additional risks to the donor since her part of the process is already complete.
I just want to add that this information is current at the time I wrote it. Things are rapidly changing so it’s best to check for current updates on the situation here in New Hampshire.
Ready to move forward as an intended parent or surrogate? Contact me today for a free consult.
