PM: only residents and dependents welcome
If that didn’t make it challenging enough, the Prime Minister Scott Morrison announced today that only Australian citizens and residents and their dependents would be allowed to fly to Australia from Friday.
For those from Tasmania, life gets more difficult, with the Premier announcing that anyone travelling there who is not on essential travel must go into 14 days self-isolation.
For those undertaking surrogacy overseas, it remains to be seen how the Department of Home Affairs will consider who is a dependent and who is not. Will a child conceived through surrogacy to Australian intended parents be able to fly here on a tourist visa (as has been the norm for years) or will that child have to obtain Australian citizenship first? I don’t know.
I also don’t know whether Australian intended parents will be able to enter either the US or Canada in advance of their child’s birth. Canada has announced a closure of borders along the lines announced by Scott Morrison today. Canadian colleagues are seeking to help international intended parents to enter Canada under special circumstances. Nothing could be more special than going to another country to become a parent- and thereby protect and nurture a vulnerable infant. However, whether this view is taken by Canadian colleagues is another matter.
The situation in the US is uncertain and continually changing. It varies from place to place. I have been told stories by American colleagues that US hospitals have refused entry to US intended parents or guardians from another State- because the hospital considered them from a high risk COVID-19 State. In one case my US colleague was on the phone with the hospital and its lawyers until 1am- but to no avail.
Hospitals will of course be aware of their duty of care to their patients, including other patients, and staff to ensure a safe place. Whatever the desire of intended parents, if hospitals consider that they would be breaching their duty of care, then the intended parents will not be let in. A US colleague and friend has told me she acted for a Chinese couple who waited two long agonising weeks of torrid calls and negotiations before the hospital allowed a guardian access to the new born child.
There is little point in getting angry and yelling at hospital staff or their lawyers. That won’t fix the problem. Engagement by those who know the hospital- local surrogacy agency staff or local lawyers, as well as the personal pleas of the intended parents – is likely to be more effective.
Australian intended parents who are in the surrogacy process in the US or Canada should be confident that ultimately they will be able to return to Australia with their babies. What I can’t say is how long this process might take, what is the process (as it may be considerably different to the one used for years) and how much it might cost. It will likely cost a bit more, but how much that bit is, I simply don’t know at this stage. My first surrogacy case was in 1988. As well as being a dad through surrogacy, I have advised in about 1600 surrogacy journeys, many of them to the US and Canada, for clients across Australia and at last count from 30 other countries. I have never seen it like this.
My good friend and US colleague Steve Snyder from Minneapolis has told me that in 40 years of his agency’s existence he has never seen anything like the current state of affairs.
What I can say confidently is that Australia has taken its obligations under the International Convention on the Rights of the Child seriously concerning overseas surrogacy arrangements that have gone awry due to an international crisis, and that as a result Australia has acted effectively (often behind the scenes) to ensure that the children are able to come back to Australia when surrogacy crises occurred in:
Australia does not want to leave children behind, and its record is consistent with that.
I am hearing from US colleagues about difficulties with low staffing at courts and birth registry offices, which then are likely to cause delays. Just like in Australia, workplaces in the US have emptied out, while staff take leave or work from home. I expect that I will soon be hearing about delays in passport offices. The situation is extremely dynamic. Just as we seem to be on top of the current development, another occurs that up ends the landscape. This is occuring at times on a daily or several times daily basis.
Intended parents must plan for the worst and hope for the best. Having lawyers both ends trying to co-ordinate and assist here and there is likely to be the most effective means. Speaking to your local federal MP or Senator will likely also assist, although with the other crises that are enveloping governments here and there arising from COIVD-19 that action is likely to take longer than usual.
Although my motto is: “Oh Lord, give me patience, but give it to me quick”, this is currently a case of “Patience, petal.”
Amidst all the cacophony, intended parents must plan on the basis that they may not be at their child’s birth- and if so, ensure that there is someone able to care for the child so that the child is safe and well before they get there. All options should be on the table. I am hearing of surrogates offering to care for the child until the intended parents arrive. This is something I would NEVER recommend, but in the current environment might be the most suitable. I am also aware of private foster carers (NOT through the State system) who have stepped up (no doubt for a fee) to care for the child until the parents arrive.
The sooner this is discussed with their US or Canadian surrogacy agency and with their US or Canadian lawyers, the better. Sooner or later Australian parents will be with their child and their child will be back in Australia.
I have advised clients during this crisis to look after their mental health. That includes:
- having a support network of family and/or friends
- if needed, have a counsellor on tap, so that you have someone to debrief to. There are many excellent fertility counsellors through ANZICA (Australia and New Zealand Infertility Counsellors Association) if needed
- subject to social distancing and infection issues- keep up an exercise regime
- keep a positive attitude. This does not mean be like Pollyanna- be realistic. Looking at a glass half full rather than one half empty will aid you through this crisis, rather than make things worse.