The impact of COVID-19 on your US 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 the United States. 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 US 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. The American Society for Reproductive Medicine has taken a similar approach. 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.

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

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 the US, 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). However, the US Food and Drug Administration has required tests to be carried out on the couple for the purposes of allowing the embryos to be used in the US.

It should be expected that the requirements of FDA testing will be subject to requirements for COVID-19 if not already undertaken.

Creation of embryos in the US

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 the US. The former will mean:

• the protocols of the Australian IVF clinic determine how the sperm is taken and frozen. In an ideal world, US 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 the US.
• 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 the US. Let us assume that you have a one week journey to the US. That journey has instantly become a five week journey: two weeks quarantine on arrival in the US, 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 US hospitals can be prohibitive – if you do not have insurance coverage.

You should be discussing with your US 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 the US? Suddenly the supply of sperm to your Australian IVF clinic is seeming to be such a better idea.

When you travel to the US, in all likelihood you 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.

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 the US. US 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 US 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 the US, consider going through a less busy airport than LAX, such as San Francisco. It is still busy. There are still issues of COVID-19, but it is 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), it may be hard getting a seat on a plane.

What remains unclear is what coverage will be provided to US surrogates by their health insurers in case the surrogate contracts COVID-19. The two biggest risks for Australian intended parents in undertaking surrogacy in the US have been the exchange rate (which has now crashed to US$ 0.61)and the cost of healthcare (and therefore the associated cost of adequate health insurance). Obtaining expert advice about the health insurance for the surrogate and baby is essential before the gestational carrier agreement is signed. Most retainer agreements with surrogacy agencies in the US or with the attorneys 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.

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!

US 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 the US to attend at the birth of your child- and that there should be someone in the US 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. Good US surrogacy lawyers and good US surrogacy agencies make sure that there is always a plan in place in case you are unable to be there at the birth. The issue has also been raised by the American Society for Reproductive Medicine, which recommends planning in case travel is not possible.

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 (or is that step 3?)- the court order

The US is a federation with 51 sets of laws (50 States plus DC). Depending on the State depends on whether there is a pre-birth order or a post-birth order. Sometimes if the ART is undertaken in California, the California pre-birth order is recognised in the State where the child is born.

The process differs markedly from State to State. While most States do not require a physical appearance by you, some do. You should check with your US attorney. If a physical appearance is required, then you should check with your attorney as to what, if any,  COVD-19 protocols have been put in place by the court.

Alone of all the States, Illinois allows parentage without the need for any court order by way of an administrative process. While convenient, generally that is not a wise course for Australian intended parents who in the main for Australian legal reasons are better off having a court order recognising them as the parents.

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 the US. 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.