The Impact of a Pandemic on International Surrogacy: An Interview with ART Attorneys Margaret Swain and Nidhi Desai

Legally Speaking is a guest authored column. The specific content of each column is written by the author as he/she understands the facts--scientific, medical, legal or otherwise--as they relate to the informaion presented, and in no way reflects ASRM's understanding, opinion or presentation of these facts.

As readers are well aware, in March 2020, the Trump administration abruptly issued travel bans that prohibited travel into the U.S. from a number of countries, including many where international intended parents were eagerly--and increasingly anxiously--awaiting the births of their children to U.S. gestational surrogate carriers. The travel ban went into effect at the same time much of the U.S. workforce was told to stay home, shuttering or drastically curtailing the work of federal and state courts, agencies, and regulatory bureaus.

Under the best of circumstances, and in the best of times, a successful international gestational surrogacy arrangement requires a carefully orchestrated, inter-professional effort of medical, legal, and psycho-social teams. From a legal perspective, steps typically include international intended parents identifying a surrogate, frequently with the assistance of a coordinating program in the U.S., that then assists in coordinating the arrangement together with independent local counsel for each party, in order to reach an agreement to carry and deliver the child in the U.S., to be able to come to the U.S. for the birth, arrange for pre-birth or birth orders declaring the child’s legal parentage, and secure a passport for the child to return with them to their home country. Each of those steps require advance planning, knowledgeable professionals, and well-functioning and cooperative federal, state, and local governments.

This month’s column addresses the Pandemic related challenges that have arisen for participants and professionals involved in these steps of international surrogacy arrangements, and how they have been met. I interview two experienced ART attorneys who have been at the forefront of these issues: Margaret Swain (“MS”) of Baltimore, Maryland and Nidhi Desai (“ND”) of Chicago, Illinois, Director and Deputy Director of AAAA, ART legal practice group.

--Susan L. Crockin

Q: First, I want to thank you both for taking time to discuss how you’ve spent the last several months trying to help your international surrogacy clients navigate these unprecedented issues, and the creativity and determination, not to mention international and domestic collaboration, you’ve had to employ.

Q: Give us an idea of how and where this all started for each of you?
MS: I had two sets of international clients whose babies were due to be born in May and June, which was during the travel restrictions. One couple is from Germany and the other from Spain. Travel into the U.S. from both countries was immediately stopped by the Presidential Proclamation, except under very specific circumstances. My German Intended Mother was able to travel to Maryland the day before the restrictions were imposed, thanks to foresight, and the ability to pay a premium price for a flight and make arrangements to remotely complete her work assignments. Unfortunately, her husband was never given approval to travel, even after the baby was born. The Consulate was requesting proof of birth in the form of the child’s birth certificate, and delays in obtaining it kept him grounded at home. My Spanish couple arrived 10 days before the birth of their twins, only after providing a copy of the parentage order, a letter from the hospital, my attorney letter, and the Affidavit of the Physician to the Consulate. After a 14-day quarantine, they were finally at the hospital on the day of the babies’ discharge.

ND: I had a client who decided to come in early from China as the threat of a shutdown loomed. After no one could locate him for several days, he called from Malaysia, explaining he had been to several different countries trying to board a flight and hadn’t been able to find any route into the U.S. Ultimately, we had to secure two temporary guardianships--one for the surrogate to make decisions for the baby immediately after the birth, and eventually, a second one for a friend of the father’s in California who drove to Illinois to pick up the baby. We were able to get him a temporary guardianship, and after quarantining here in Illinois, he was able to take custody of the baby.

Q: Tell us, what kinds of issues have you been dealing with?

ND: In short, two big issues--trouble getting in and trouble getting out. In March, it was impossible to get visas to enter the U.S. for most international intended parent clients. That has changed over time, and it has become easier to get in over the past few months, if clients are persistent in papering local consulates. If you can’t get into the U.S., babies aren’t able to be with their parents, and we’ve needed to find temporary guardians, and figure out as we go the appropriate and varying mechanisms under each state’s laws to do that.

Until recently, whether the U.S. was refusing to issue a visa until a child’s birth, or whether it would issue a visa at all had been country dependent. Recently, we have seen this shifting in some locales as passport offices have begun to open. Also, some countries are helping on an emergency basis without requiring a passport, by issuing country specific emergency documents.

MS: With travel restrictions into the U.S., International parents may not have been able to travel to this country for or immediately after their surrogate’s delivery. This contributed to a host of other issues, including safety and health concerns for the child, lack of insurance coverage, and unexpected financial issues to both care for the child and tackle these obstacles in the U.S. and home country. In terms of getting home, my clients, and many others, were not able to get their child a U.S. passport as they routinely could pre-COVID to enter their home country. As of August 10th, 12 passport offices have entered “Phase 1”; six are in “Phase 2”. A total of 24 passport offices are now open and providing some level of services. I’m hopeful this will be helpful in getting passports issued more quickly. But there is a several week backlog for standard, and up to two weeks for expedited passports, so this problem is not going to go away immediately.

ND: Appointments with the passport office also had been suspended, and that is also opening now. Most recently, we were told if you have a flight out within 72 hours, you can get an immediate appointment. We’ll be finding out soon if that’s true.

Q: How many cases are you aware of and how many are you each personally dealing with?

ND: There are more than 100, and probably closer to 200 similar cases around the U.S. that I am aware of, and reportedly 75-100 in Ukraine. Since March, I’ve had 15+ cases. All but three have now gotten through channels one way or another. I have been advising clients to come as soon as possible and wait for births here in the U.S. All have been via emergency documents, from their home countries, not through the U.S. and what had been our ordinary channels.

MS: I have had a handful, all of whom ultimately got home, but only via emergency documents, not a passport.

SLC: Reports also have just come in this week that the Chinese Consulate has agreed to issue travel documents to allow U.S. born children to travel back to China without a U.S. passport.

Q: How would you describe the impact on your clients?

ND: Not surprisingly, this has added significant anxiety and many unanswered questions. We are still dependent on the federal government to issue these children passports, as well as on states to open their courts and state agencies to process birth or pre-birth orders. First, there were closures all across the board for a long time, then skeletal state level court or agency staff, who often were unable or not permitted to generate birth certificates remotely, and there are a number of practical questions like whether parents could be in the hospital with the baby as COVID restrictions came down, and the answers kept changing. Hospitals tried for the most part to be accommodating, but the circumstances were obviously challenging.

MS: My clients were able to get the children’s passports from their home countries--not the U.S.--by travelling to their countries’ embassies in the U.S. The fact that Maryland is so close to the District made this a simpler matter than it may have been if they were in a more distant state, or the country’s embassy office that issues passports was elsewhere. However, the delays in availability of birth certificates (necessary for the passport process) required much longer than usual stays in the U.S.

Q: Any silver linings at all?

ND: We have seen several volunteers, including former surrogates, stepping up and offering to temporarily care for these kids. That type of response has been heart-warming.

Q: What do you think is happening now, and do you see permanent changes coming out of this for international surrogacy?

ND: I see a lot of energy going into restarting surrogacy arrangements, and a lot of understandable interest and optimism, but I am concerned that this may be the first of multiple starts and stops.

MS: In some cases, intended parents are finding third or fourth countries to travel through, and potentially quarantine in, and in some circumstances, this has worked well. However, the plan is not foolproof since that country could be added to the travel ban list if there is an emergence or increase in the virus there.

Q: Specifically, in terms of legal issues, do you see or anticipate any across-the-board changes in how international surrogacy in the U.S. has or will change?

MS: I see some new provisions that need to be in the agreements between intended parents and surrogates. A few examples we need and are drafting now are:
  • Provisions for a local guardian, including naming that person, and a plan for how to legally appoint that person in the event a parent cannot get into the U.S. or take custody of their newborn.

  • A “force majeure” provision needs to be added--essentially saying, you can’t hold someone to a contract if the government imposes regulations that change the circumstances so you are unable to perform the specifications of the contract.

  • Provisions addressing situations where a surrogate may feel unsafe, for example, about going to a doctor or to a transfer during COVID outbreaks.

  • Longer time frames for the duration of the agreement. People need more time to ensure a transfer, for example.

  • A release of liability for whoever is the local guardian in case something happens to the child. For instance, if a matching program employee, the surrogate, a former surrogate, or even the attorney stepped up and offered to be a temporary guardian, these caregivers need appropriate protection from claims for liability if the child becomes ill or is somehow, through no fault of the caregiver, injured. 

ND: I would add a few additional issues:
  • With all the inconsistent directives from different state and federal authorities, our contract language needs to specify how decisions are to be made and what constitutes compliance. We’ve tended to say if a party is following the most protective guidelines, they are not in breach of contract. Our goal is to try to tie it to an objective standard.

  • Who’s legally responsible for costs if a temporary guardian is needed? And while I haven’t seen it yet, we may find people agreeing to escrow additional funds for that type of potential arrangement.

  • I also think we need to help all our clients adjust their expectations. They cannot put surrogates in a bubble for the duration of a pregnancy despite a pandemic.

Q: Are you seeing lawyers drafting addenda to existing agreements? And if so, what types of things have you done or seen?

MS: In some cases, yes, particularly if there has not yet been a transfer. The most common addenda are force majeure clauses and no-fault provisions for failure to perform certain duties (such as medical appointments and procedures) within the time frames specified in the original agreement.

ND: We are routinely adding this issue as to decision-making and following directives in both new and existing agreements and adding the issues from the prior questions into any addenda.

Q: The impact of COVID is likely to be with us for much longer than any of us hoped. What do you want physicians and other professionals to know as we continue to move forward through these new times and challenges?

ND: All professionals really need to stay in touch with one another and provide consistent messaging when possible. One example is that as medical programs were closing and then some re-opening, there was a lot of confusion as to why and what safety precautions were being implemented. Communication goes a long way to reassuring the participants.

MS: There’s never been a better time to emphasize the inter-professional nature of this type of family building. Talking and learning from each other, and sharing information with clients, helps to allay anxiety.

SLC: My thanks to you both for sharing your insights into international surrogacy in the time of COVID. These are challenging arrangements under the best of circumstances, and I am sure your clients are grateful for your guidance and expertise in these extraordinary circumstances.

SLC Postscript: On Saturday, August 15th, the New York Times reported in Mothers, Babies Stranded in Ukraine Surrogacy Industry that 1,000 babies are “stranded” in Russia; that earlier in the pandemic, 79 babies were being cared for in a hotel in Kiev, Ukraine, awaiting delayed arrivals from intended heterosexual couples; and that Ukrainian surrogates were returning home from third countries to avoid the travel ban after delivering babies for delayed arriving international intended parents (per arrangements that had been made for implantation and delivery outside Ukraine to avoid its surrogacy ban for same-sex couples). Click here to read this article:

A column highlighting recent court decisions affecting the assisted reproductive technologies and the families they create, written by Susan L. Crockin, J.D. and guest authors who offer unique perspectives and expertise on significant legal topics.  

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