COVID-19 EXPERT LEGAL INSIGHTS

The challenges for intended parents and surrogacy arrangements
during the coronavirus crisis

7 May 2020

The coronavirus crisis has caused huge disruption across the world. The distress that it is causing is compounded in circumstances where intended parents of surrogacy children are in the middle of their surrogacy journey. In this blog, we address some of the most common issues people are experiencing and provide practical tips on how to navigate the current situation. These challenges include access to fertility treatment, pregnancy and birth, international travel restrictions, immigration status, parental orders and Wills among others.
 

Above all, it is important to try not to panic and remember that whilst you may have to alter some of your plans, the professionals who are assisting you will be working hard to ensure that things go as smoothly as possible.

Fertility treatment

The British Fertility Society (BFS) and Association of Reproductive Clinical Scientists (ARCS) issued guidance on 18 March 2020 regarding the cessation of fertility treatments including IVF and embryo transfer and the Human Fertilisation and Embryology Authority (HFEA) have confirmed that they expect clinics to follow this advice. In summary, the BFS and ARCS recommended:

  • That clinics stop initiating new fertility treatments, including in-vitro fertilization, frozen embryo transfer, surgical sperm retrieval, insemination and ovulation induction;
  • Where treatment has already commenced, that it is reasonable for clinics to complete that treatment where the patient remains well;
  • Where resources allow, that non-elective fertility preservation, for example sperm and oocyte or embryo storage for cancer patients, can continue provided the patient shows no symptoms of infection;
  • That clinics should ensure that there is  sufficient scientific staff in place to maintain and ensure the on-going safety of gamete and embryo storage banks;
  • That all face-to-face work should pause, other than in emergency situations and where delay would be detrimental to the prospects of patients.

On Friday 1 May, Matt Hancock MP announced the re-opening of fertility centres, and the BFS and ARCS are waiting for confirmation from the HFEA that its direction halting fertility treatment will be revised or revoked. It is expected that fertility centres will be required to apply to proceed with treatment by confirming to inspectors that they are able to do so safely in the face of the on-going COVID-19 pandemic. BFS and ARCS are going to produce guidelines for the sector with a view to services resuming.

In the meantime, fertility clinics’ closures are having an impact on IVF treatment generally and during surrogacy processes. The impact on egg and sperm donation is also uncertain and this may have longer lasting effect. Your fertility clinic should have already been in touch to discuss your options but ensure that you continue to check the guidance and keep in regular contact with your clinic as the situation evolves.

The position is similar in the US, a jurisdiction which many intended parents choose for international surrogacy arrangements. The American Society for Reproductive Medicine (ASRM) recommended on 17 March 2020 that new treatment cycles should be suspended and that providers should strongly consider cancelling embryo transfers. The recommendations did not suggest that care should be discontinued for patients who are currently “in-cycle”. The most up to date guidance from the ASRM can be found here.

 

Pregnancy and the birth of a child through surrogacy

For intended parents who are further along in their journey, pregnancy is usually an exciting yet challenging time and the current coronavirus crisis provides additional layers of stress.

The Royal College of Obstetricians and Gynaecologists has confirmed that the evidence to date suggests that pregnant women are no more likely to contract COVID-19 than the general population and there is currently no known additional risk to unborn babies. However, pregnant women have been placed in the vulnerable group by the UK government due to impact that pregnancy can have on a woman’s immune system, meaning that they may suffer from more severe symptoms. Detailed advice from the Royal College of Obstetricians and Gynaecologists can be found here. As a result, pregnant women are advised to strictly adhere to social distancing guidelines, particularly when over 28 weeks pregnant. Intended parents are likely to want to speak to their surrogate about their circumstances at home and the plans they have in place to adhere to social distancing and self-isolation. A good level of communication is likely to be key, particularly where a surrogate and intended parents live in different jurisdictions where the rules may be different.

As your baby’s due date nears, you should check with your health care provider, whether this is an NHS hospital in the UK or a hospital abroad, what their current policy is in respect of birth partners and visitors. The current advice from NHS England is that visiting is suspended unless you are the birth partner of a woman who is in labour. It is unclear what the situation is if a woman has more than one birthing partner (for example a surrogate’s husband and the intended parents), but if you were planning to attend the birth, you may have to discuss your options if only one person is allowed to be present. 

 

International surrogacy – crossing borders during COVID-19

The travel restrictions which are now in place across the world may mean that intended parents who are going through an international surrogacy process either cannot attend the birth and be present immediately thereafter or, if they have already travelled abroad for the birth, they may not be able to come home quickly with their baby. There is also the increased possibility that a parent may fall ill during this process and have to quarantine in line with local advice.

What if our baby has been born and we are stuck abroad?

The position here will vary depending on where you are and the nationality of your new born child.

It may be that your baby is entitled to British Citizenship at birth, but even where that is the case, the usual process for obtaining a British passport for a baby following an international surrogacy arrangement can be lengthy.

There may be options for travelling to the UK more quickly. Where the surrogacy has taken place in the US or Canada, for example, the child will typically be entitled to a US or Canadian passport on which they can usually travel to the UK, although this is reportedly taking much longer than usual. It will still be important to resolve any immigration or nationality issues but this could enable a speedier return to the UK.

The UK authorities may be prepared to expedite applications for citizenship or passports in view of the current exceptional circumstances. Although this is never guaranteed, it is something which can be explored in these cases. That said, ensuring any application is complete at the outset is important to avoid unforeseen delays.

If a child requires a visa to travel to the UK, there are likely to be additional delays as the visa application centres around the world are closed, which means that applications cannot be processed at present. In these cases, it is worth taking advice on the options that may be available to you.

We always advise ensuring you have considered the immigration and nationality implications of an international surrogacy arrangement at the earliest opportunity. At this time, that advice is more important than ever.

What if our baby is about to be born and we have not yet travelled to the country of birth?

The position will depend on the guidance and travel restrictions in place in the country in which your baby is due to be born.

As set out above, a number of surrogacy arrangements take place in the US and specialist immigration advice should be obtained urgently from a lawyer based in the relevant state if your baby is due in the near future. Exceptions exist in respect of the travel ban announced by President Trump at the end of January for parents of US citizens under the age of 21, which would include intended parents, although you are likely to require a special visa in order to travel.  On a practical level, you will need to provide evidence that the baby is your child and so you should gather all of the relevant information together as soon as possible. This may include a copy of the pre-birth order if available, letters from your US and UK lawyer and a letter from your doctor in the US to confirm the position and the fact that your child is about to be born. You will also need to be prepared to answer questions about your quarantine arrangements while in the US and plans (as far as you are able to make them) to return home. It is likely that applications for US birth certificates and passports will take much longer than usual and so you may need to consider whether arrangements for your return can be made with the UK immigration authorities (as referred to above).

 

Parental orders – open for business but not quite business as usual

 For intended parents to be recognised as a child’s legal parent in England and Wales, whether the family have been involved in a domestic or international surrogacy arrangement, it is necessary to obtain a parental order from the court. While the courts in England and Wales are still operating, hearings are currently taking place remotely and it is likely to take longer for applications to be heard. Given the likely delay to a first hearing being listed, and therefore a delay to the court granting the intended parents parental responsibility for their child, parents may want to consider asking their surrogate to sign a Deed of Delegation of Parental Responsibility. While the Deed is not a legally enforceable document, it is often used by parents who need to make early decisions about their child’s care (for example medical treatment) where the surrogate may not be around to provide their consent.

While the social distancing rules remain in place, intended parents need to be prepared for the fact that their hearings and the meeting with their parental order reporter will take place by videolink. While this may seem daunting, if you have solicitors acting for you, they will arrange the hearing, the paperwork for the judge and parental order reporter and everyone’s remote attendance. Guidance published by the judiciary in respect of remote hearings can be found here. If you are acting in person and need to issue an application for a parental order or have an imminent hearing, the best thing to do is contact the relevant court to confirm the arrangements. 

The law currently still requires intended parents to make their application for a parental order within six months of their child’s birth although, as we have seen with a number of other cases in recent years, it is possible that the court will permit applications outside of this time limit if issues arising out of the COVID-19 crisis prevents this.

The criteria for applying for a parental order also currently provides that, at the time of the application and of the order, the child’s home must be with both parents. Practically speaking, if one or both parents have not been able to travel to be with the child for the birth and the intended parents then lodge their application at court soon after the birth, it may be that one or both parents will not physically be caring for the child when the application is made. While this is unlikely to be seen as a non-compliance with s54 (4)(a) of the Human Fertilisation and Embryology Act 2008 and prevent a parental order being made, the intended parents should keep a diary note of their movements and reasons so that this can be addressed in their statements in due course.

 

Wills and guardianships for children born through surrogacy

Whilst it is perhaps not the obvious priority, now is the time to ensure that you have an up to date Will in place. The current situation has prompted many of us to reflect on our own mortality. For someone going through the surrogacy process, it is particularly important to ensure that you have a Will that suitably provides for and protects your child.

A child born through a surrogacy arrangement will not be recognised as the legal child of his or her parents until a parental order has been made. The standard definition of “children” incorporated in most Wills does not cover a child born through a surrogacy arrangement.  It is therefore essential that you have a suitably drafted Will to ensure that your child is recognised as such. Your Will should also cover off important points such as guardianship i.e. who should have parental responsibility for the child if both of the prospective parents die before the child is born or before the making of a parental order. It should also be drafted so as to ensure that any obligations under the surrogacy contract are assigned in the event of the deaths of both prospective parents before the surrogacy contract has finished

 

Please note that the general guidance provided within this blog is accurate at the time of writing on 7 May 2020. It does not constitute legal advice and specialist advice should be sought in individual circumstances. The relevant rules and official advice is constantly evolving and specific advice should be sought if you have any particular concerns.

Further information

If you have any questions or require advice about the issues covered in this blog, including making an application for a parental order, please contact a member of our family team.

To read more about international surrogacy and the position in the UK, see our Frequently Asked Questions about surrogacy and our previous surrogacy blogs.

You may also be interested in our other coronavirus blogs for other family law, immigration and wider topics.

 

About the authors

  • Sarah Dodds is an Associate in the family and divorce team, where she specialises in complex divorce and financial work as well as private children cases. Sarah specialises in divorce and matrimonial finance disputes, including in particular those which contain complex pension issues. She also regularly deals with high conflict cases relating to children’s arrangements and financial provision for children, including international and domestic relocations and child abduction. Sarah has a particular interest in adoption and surrogacy matters and regularly advises parents who wish to apply for parental orders following the birth of their child.
  • Katie Newbury is a Senior Associate in the private client immigration team, where she advises a broad range of clients.. She has experience across a wide spectrum of UK immigration matters. Her particular expertise includes applications made under Tier 1 of the Points Based System, complex personal immigration matters, as well as the immigration implications of international surrogacy and adoption.
  • Connie Atkinson is a Senior Associate in the family team and has experience of dealing with all aspects of private family work relating to both finances and children. Connie has expertise in cases involving: international elements such as relocation and cross-border disputes; international surrogacy; arrangements for children; company and/or trust assets; pre and post nuptial agreements. Connie is also a qualified mediator and assists as a mediator for clients in respect of all practical and legal issues surrounding family arrangements and divorce.
  • Stephanie Mooney is an Associate in the private client team. She advises on a broad range of matters including lifetime succession and estate planning, wills, the administration of estates (probate), the creation of and administration of trusts, powers of attorney and applications to the Court of Protection and other mental capacity issues.

 

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