COVID 19 and Surrogacy Impacts

The COVID 19 virus has had a ripple effect through the entire world, and this impact has not spared the assisted reproductive technology world.

Recent change in ASRM Guidelines on Embryo Transfers

Recently, the American Society for Reproductive Medicine has issued guidelines regarding the medical implications and precautions provided to those participating in assisted reproduction.  While enough studies have not yet been conducted, the initial research shows that COVID 19 does not have negative impacts on children born to women who are infected with the virus. Despite the lack of risk shows to date, the ASRM is recommending:
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:
  1. Suspend initiation of new treatment cycles, including ovulation induction, intrauterine inseminations (IUIs), in vitro fertilization (IVF) including retrievals and frozen embryo transfers, as well as non-urgent gamete cryopreservation.
  2. Strongly consider cancellation of all embryo transfers whether fresh or frozen.
  3. Continue to care for patients who are currently “in-cycle” or who require urgent stimulation and cryopreservation.
  4. Suspend elective surgeries and non-urgent diagnostic procedures.
  5. Minimize in-person interactions and increase utilization of telehealth.
Note: This guidance will be revisited periodically as the pandemic evolves, but no later than March 30, 2020, with the aim of resuming usual patient care as soon and as safely as possible.
Based on these 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 cycles. The ASRM guidelines are hopefully a short term pause and the recommendations will be reevaluated. Delays in embryo transfer cycles can have implications on the terms of a surrogacy agreement. Possibly an agreement being drafted will need to be delayed and if an agreement was just entered into, the parties may need to discuss how long they are able to wait for a new cycle and any payment obligations that may become due once the agreement is signed.

Health Insurance Concerns with Covid-19

The question will soon become whether someone diagnosed with Covid-19 will be covered by their applicable health insurance policy. Some policies will include testing and medical care by the insurance policy and some policies have exclusions for coverage as they do not cover infectious diseases. The question also becomes whether life insurance policies  and accidental health insurance purchased for surrogates would cover a death due to Covid-19. Some states have initiated a special open enrollment 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.

Travel Restrictions and Court Changes and Impacts on Surrogacy

Every day the travel restrictions are changing globally. The impact this causes is for both international and domestic parents who may have difficulty making it to the birth of their children and also, may cause difficulties returning home with the child after the birth. The travel restrictions are constantly changing with borders closing as the virus progresses, however, there is an exception within the travel restrictions as follows which would apply to intended parents as they are deemed the legal parents of the child being born to the surrogate (this notion  is state specific, but my writing is limited to Florida law):
-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 will still be permitted even with this exception in place as there is great discretion in permitting people to travel. Also, there is the possibility that if travel is permitted, that the travelling 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, the Department of State announced the suspension of routine visa services worldwide. Embassies and consulates will resume routine visa services as soon as possible but are unable to provide a specific date at this time. Intercountry adoption cases remain a high priority for the Department of State. Intercountry adoption cases where the adoptive parents are in country and the case is in the final stages of visa processing may still be processed to the degree that Embassy and Consulate resources and foreign government rules allow. Please be aware that circumstances can change frequently and with limited notice. Therefore, we strongly encourage prospective adoptive parents and their Adoption Service Providers to conduct careful research, including a review of the potential travel restrictions and quarantine requirements imposed by foreign governments as well as an embassy or consulate's ability to accept visa appointments, prior to any decision regarding travel at this time. To check on current travel restrictions, you can find them on the CDC's website. The ability to get a U.S. passport after the birth certificate has been issued is an ever changing process due to COVID-19. Local state departments have opened and then subsequently closed during the COVID crisis which impacts an ability to receive a U.S. Passport. The best thing to do is to call your local passport office to determine if offices are open to issue a non-emergency U.S. Passport. In the past few months, intended parents were told that it would take approx. 6 weeks to receive a passport through this in-person non-emergency appointment process. An alternative way to receive a U.S. Passport is based on a life or death emergency. More information about the life or death issuance of a U.S. Passport can be found here: This emergency passport process still requires calling ahead to make an appointment with the required documents (listed below), but it is important to remember that the appointment cannot be made until return travel to an intended parent’s home country is booked within 72 hours (3 days). The documents required for this emergency application includes:
  1. A passport application with supporting documents
  2. Proof of the life-or-death emergency such as a death certificate, a statement from a mortuary, or a signed letter from a hospital or medical professional. Documents must be in English or translated in English.
  3. Proof of international travel (itinerary, ticket, reservation) specific to the emergency

What Can you Do to Prepare for Upcoming Delivery?

For intended parents who have a birth approaching soon, it is important that you start the planning process immediately to determine how you 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 health care surrogate to take certain actions as it relates to the birth such as making medical decisions and taking the baby home if they are unable to make it in time to the delivery. The intended parents' attorney can prepare such documentation but the applicable hospital may have their own required paperwork to appoint a power of attorney for the intended parents so it is important to coordinate such logistics with the hospital in advance of any birth. 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 such as:
  1. The parties should exchange contact information with one another and with the power of attorney;
  2. 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
  3. Whether the surrogate is going to pump breast milk (and supplies need to be provided)
  4. Whether cord blood is going to be stored
  5. Whether a circumcision should be performed if it is a boy
  6. Whether the baby can be placed on life support if needed
Whether surgeries can be performed on the baby if emergency (i.e. cannot wait for the IP’s to be here to decide), and recommended by the doctor It is also important to consult with your attorney to see the current status of court proceedings and Vital records offices remaining open, as each courthouse has different levels of closure, limited hours, etc. Determining the available court process is important as your attorney may need to obtain a court order before and/or after the birth of the child in order to have a birth certificate issued in the intended parents name. Such birth certificate is then required to issue a passport for the child (if needed for international travel), and to place the child on the intended parent's health insurance plan (if applicable). As stated by Alison Wilson, PHD in a webinar hosted by the ABA Family law section, she recommends starting off by taking a deep breath, setting boundaries for how often you read the news, and practice "productive worrying".  

Obtaining a Social Security Number During Corona Virus Shut Down

All social security offices are closed but they have limited staff at the office. Many intended parents may need a social security number in order to place their child on their health insurance plan. The social security office is only issuing social security card for emergency situations. If an intended parent needs a social security number as an emergency basis, the intended parents must demonstrate  that issuing a social security is an emergency situation. Intended parents must also provide certain  original documentation including a social security new card application to a local office to review and determine if social security will issue a social security card. It’s not guaranteed but it will be reviewed.  Social security is stating it could take 2-3 weeks to process this, maybe less but they are not sure.