The impact of COVID-19 on your Canadian surrogacy journey for Australian intended parents

The impact of COVID-19 on your Canadian surrogacy journey for Australian intended parents

The disruptive effect of COVID-19 on our society has been extraordinary, and regrettably has impacted and will continue to impact on those seeking to be parents through surrogacy.

This post focuses on intended parents living in Australia who seek to become parents through surrogacy in Canada. COVID-19’s impact on your surrogacy journey will depend how far along the journey you are. I will focus on the whole journey. COVID-19 makes the journey more complex, likely longer and possibly more costly. COVID-19 must be factored into every Canadian surrogacy journey for Australian intended parents.

Step 1 – creation of embryos

As the Fertility Society of Australia has made plain, caution is the new normal when embryos are created. IVF clinics will be wanting to ensure that those who provide their sperm or eggs are COVID-19 free. This will likely mean in turn that there will be delays in the creation of embryos.

A similar approach has been taken by the Canadian Fertility and Andrology Society,  which says:

There is very little known about the impact of COVID-19 on reproduction and pregnancy. However, pregnancy increases susceptibility to respiratory infections and severe respiratory infections in pregnancy can lead to preterm labour and delivery. As such, we recommend that non-essential travel to areas where an increasing number of COVID-19 cases are being reported should be avoided by patients and their partners.

We recognize that this is a fluid situation and recommend all members monitor public health agencies for official directives and outbreak information.

All those in contact with patients have a critical role to play in helping to identify, report and manage potential cases of COVID-19.  We encourage everyone to follow good hygiene practices, including washing hands often, covering your coughs and sneezes, and avoiding contact with others when unwell.

As further developments in the COVID-19 outbreak and the mitigation strategies to limit its spread emerge, fertility clinics are having to make difficult decisions about what services they will or will not provide, and some are even contemplating closure.

CFAS recommends that each region follow their respective Public Health authority and Government of Canada directives. However, in addition to infection prevention and control strategies such as washing hands often, covering your coughs and sneezes, and avoiding contact with others when unwell, there are other potential strategies you can employ to minimize risk to staff and patients.

When Australian intended parents create embryos for their Canadian surrogacy journeys, the embryos are either created in Australia first, and then exported to Canada or they are then created in Canada.

Creation of embryos in Australia

If the embryos have been created pre-COVID-19, then one would not expect too many delays in being able to export them to Canada, subject to the usual restrictions on export- namely issues for export from Western Australia, NSW and Victoria in particular, and ensuring that export is not for the purposes of commercial surrogacy (in which case the Australian IVF clinic will not facilitate the export because to do so might be a criminal offence or might be a breach of its licensing conditions. If in doubt, get good Australian legal advice FIRST before approaching your Australian IVF clinic). Canadian law says that the surrogacy journey must not be commercial. However, there are subtle differences between the law in Canada about what is and what is not commercial, and that in several Australian States.

Creation of embryos in Canada

If the embryos have been created pre-COVID-19, one would not expect that there would be great delays in their use. However, if the embryos are being created now, then consideration should be given to supplying the sperm in Australia and shipping it over, rather than the more usual route of supplying the sperm fresh in Canada. The former will mean:

  • the protocols of the Australian IVF clinic determine how the sperm is taken and frozen. In an ideal world, Canadian IVF clinics prefer that they are in control of the freezing and storage process. that simply is not the case with freezing and storing the sperm in Australia. Australian intended parents can have confidence that our IVF clinics are simply world-class. However, this may be an issue that is discussed between the clinics.
  • the Australian clinic may need to be satisfied that it is not taking part in facilitating commercial surrogacy. Again, this is an issue in which you should obtain expert legal advice before approaching your Australian IVF clinic.
  • there is a substantial cost in exporting the sperm. The cost can vary, but is often similar to that of a return air fare to Canada.
  • there is always the very low risk that the sperm may be destroyed or lost in transit. I have seen one case where intended parents lost their embryos in transit. The embryos were shipped by an Australian IVF clinic, then taken by a specialist shipper to an overseas IVF clinic- but seemed to have “evaporated” on the way.

The latter will mean that you have to travel to Canada. Let us assume that you have a one week journey to Canada. That journey has instantly become a five week journey: two weeks quarantine on arrival in Canada, one week for the attendance, then another two weeks quarantine on the way home- assuming that by then that you will be allowed to travel at all, and that you do not get COVID-19. You should act from the assumption that health or travel insurance will not cover you- until you see definitive advice in writing from someone (such as an insurer) that you are covered for insurance. The cost of Canadian hospitals can be prohibitive – if you do not have insurance coverage.

You should be discussing with your Canadian IVF clinic in advance about what its protocols are in place to take your sperm. It will likely have to be satisfied at the time of the supply of the sperm that you are COVID-19 free. While being COVID-19 free is a waiting game, have you budgeted the time or the money to ensure that you are COVID-19 free when you supply your sperm in Canada? Suddenly the supply of sperm to your Australian IVF clinic is seeming to be such a better idea.

When you travel to Canada, many Australian intended parents will travel through Los Angeles International or LAX, which at the time of writing reportedly does not have quarantine measures in place, and from my experience is greatly overcrowded, and at times feeling as if walking into a madhouse. While LAX has improved greatly over the years, it has seemed to me at times to be overcrowded, chaotic, with people from all over the world shoved in together- or a perfect vector for airborne disease.

Other routes need to be considered- such as direct flights to Vancouver from Sydney and Brisbane, or travel via other US airports that may not be as crowded and chaotic as LAX, such as San Francisco. None are risk free.

The Australian government has advised that only essential travel to anywhere should currently be undertaken. Suddenly the supply of sperm in an Australian IVF clinic seems a much better proposition.

Most Australian intended parents do not meet their egg donor before embryos are created in Canada. Canadian IVF clinics (if relying on the the fresh supply of eggs from the donor, as opposed to eggs from a frozen egg bank) will be likely wanting to ensure that the donor is COVID-19 free. Having eggs from a frozen egg bank suddenly seems a more positive option.

Step 2- choosing your surrogate

When your Canadian surrogacy agency has matched you with your surrogate, many Australian intended parents want to meet their surrogates at that point to make sure they feel comfortable with the match. It now seems that meeting remotely (despite the risks of the match going awry) is suddenly a more viable proposition.

If you are to travel to Canada, consider going through a less busy airport than LAX, such as Vancouver or San Francisco. Both are still busy. There are still issues of COVID-19, but both are  certainly less crowded and less chaotic than LAX. However, with the announcement by Qantas that it is cutting 90% of all international flights, after previously cutting some US routes (such as the touted Brisbane to Chicago route, which was due to start in April- which would have been ideal to get to Toronto), it may be hard getting a seat on a plane.

The biggest risk for Australian intended parents in undertaking surrogacy in Canada has been the  cost of healthcare for the baby if something goes wrong (and therefore the availability and associated cost of adequate health insurance). Obtaining expert advice about the health insurance for the surrogate and baby is essential before the surrogacy agreement is signed. Most retainer agreements with surrogacy agencies in Canada  will have an all care, no responsibility clause concerning health insurance- namely that while they will take all care to make sure that the intended parents have the right health insurance for both surrogate and baby, but the risk if something goes wrong is all yours.

While Canadian Medicare will cover the cost of the surrogate in giving birth, if something goes wrong, then the cost for the child will not be met by the Canadian taxpayer. I am aware of reports where Australian intended parents did not have coverage, there was a complication with the child’s care following birth, and they were looking at a bill of in excess of $100,000 or $200,000.

Step 3- undertaking the implantation

Most Australian intended parents do not attend for the implantation or transfer of the embryo into the surrogate’s body. Most IVF clinics have the facility to enable this to be done remotely. Again, this seems currently a wonderful idea!

Canadian IVF clinics are likely to do what they can to avoid implanting an embryo into an obviously sick surrogate. However, part of the concern about COVID-19 is that apparently well people are already infected. There is the possibility that the surrogate may already be infected or become infected while pregnant. The current information is that children have been born normally. However, as the Fertility Society of Australia has pointed out, this is off a low data base, and these are early days. Whether this means that IVF clinics will put off the implantation, I simply don’t know.

Step 4- the birth!

Allowance should always be made that you may not be able to travel to Canada to attend at the birth of your child- and that there should be someone in Canada who can care for your baby in your absence. This theoretical possibility has been a reality in recent times for Chinese intended parents- who have not be able to travel to the US at all following the birth of their children via surrogacy there. Good Canadian surrogacy lawyers and good Canadian surrogacy agencies make sure that there is always a plan in place in case you are unable to be there at the birth.

Again, if and when you can travel might be difficult, may be significantly delayed due to quarantine requirements or airline availability, and if quarantine (or self-isolation) is needed at both ends, may be significantly more expensive (assuming nothing goes wrong with your health, and you are in fact covered by travel insurance).

Step 5- going to court

Different Canadian provinces have different legal proceedings before the courts. These may or may not require the parties to attend. British Columbia and Ontario allow parentage declarations to be made instead of having court orders. I generally do not recommend these for Australian clients due to Australian legal issues. You should check with your Canadian lawyer as to whether or not the Canadian court requires a physical appearance by you- and if so, what COVID-19 protocols if any the court has put in place.

Step 6- coming home

It seems that those who are most prone to infection and death from COVID-19 are those who have an underlying health condition or the elderly, not the young. You should be attending on your GP before undertaking any travel or contemplating any travel for your baby- to determine what are the current risks. Risks will change over time.

You should assume that on arrival that both you and your baby will be in self-isolation at home on arrival. Because your child on arrival in Australia is not an Australian citizen, then you should try and obtain travel insurance for your baby before they leave Canada. Whether travel insurance will cover a newborn travelling to Australia concerning COVID-19 is another matter.

Assuming that something goes wrong at this end- and your baby ends up in hospital in Australia, then at first at least you will receive a substantial hospital bill. If you have private health insurance, you should check in advance whether a newborn is covered- and whether this newborn if not an Australian citizen is still covered. If you do not have private health insurance, but your child subsequently obtains Australian citizenship, then Medicare will typically backdate benefits to when your child arrived in Australia. However, you should be having that conversation with Medicare sooner rather than later- and ensuring that you have a receipt for the conversation, in case there is a dispute between you and Medicare later on about coverage.

About me

I am a dad through surrogacy. I have also suffered infertility. I have been described as Australia’s leading surrogacy lawyer for good reason. I have advised in about 1600 surrogacy journeys- for clients right across Australia,- from the outback to the big cities-  and for clients who at last count were in 30 countries overseas. Clients of mine have undertaken surrogacy domestically or done so internationally, including undertaking or contemplating in countries that would never have been associated with surrogacy. I give advice to Australian IVF clinics about regulatory issues.

My first surrogacy case was in 1988. I am the only lawyer who has appeared in four States to obtain surrogacy parentage orders: New South Wales, Queensland, Victoria and Tasmania.

I have acted in groundbreaking cases concerning surrogacy, including the first case in the world about what is conception.

I have been recognised internationally, including being a Fellow of the International Academy of Family Lawyers (including both its LGBT Committee and its Surrogacy/Parentage Project Committee), a Fellow of the Academy of Adoption and Assisted Reproduction Attorneys and an international representative on the Artificial Reproductive Technologies Committee of the American Bar Association.

Most importantly, I have more expertise than any other lawyer in this space in Australia- and I consider it a great honour to help people become parents.

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Family Law Section Law Council of Australia Award
Member of Queensland law society
Family law Practitioners Association
International Academy of Family Lawyers - IAFL
Mediator Standards Board