COVID-19 Throws A Wrench Into Surrogacy (Along With Everything Else In The World)


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COVID-19 is affecting every facet of our lives, and the world of surrogacy is no exception. The news is changing so fast that anything written today will likely be out of date tomorrow. However, in the effort to provide helpful information, here’s the latest.

Expect Delays. We are all being told to stay home and not leave unless it’s an absolute necessity. So it is no surprise that we are seeing delays and postponements for clinical and other providers. The European Society of Human Reproduction and Embryology (ESHRE) issued a statement on March 14. That date was a Saturday, so you know things are really drastic.

The statement from the European entity said: “As a precautionary measure — and in line with the position of other scientific societies in reproductive medicine — we advise that all fertility patients considering or planning treatment, even if they do not meet the diagnostic criteria for Covid-19 infection, should avoid becoming pregnant at this time. For those patients already having treatment, we suggest considering deferred pregnancy with oocyte or embryo freezing for later embryo transfer.”

So halt everything for now. But that’s Europe.

What about in the United States? I spoke with fertility specialist Dr. Althea O’Shaughnessy, on Monday, March 16, as to what she is seeing in the United States and with her practice. At that time (two days ago), she explained that things were generally still full speed ahead but subject to change. The next day, March 17, her clinic announced that all noninitiated frozen embryo transfers and intrauterine inseminations were cancelled or indefinitely postponed. Shortly after that announcement, the American Society for Reproductive Medicine (ASRM), the American counterpart to ESHRE, issued new guidance with the following recommendations.

  • Suspend initiation of new treatment cycles, including ovulation induction, intrauterine insemination (IUIs), in vitro fertilization (IVF) including retrievals and frozen embryo transfers, as well as nonurgent gamete cryopreservation.
  • Strongly consider cancellation of all embryo transfers whether fresh or frozen.
  • Continue to care for patients who are currently “in-cycle” or who require urgent stimulation and cryopreservation.
  • Suspend elective surgeries and nonurgent diagnostic procedures.
  • Minimize in-person interactions and increase utilization of telehealth.

O’Shaughnessy explained that if a patient was actively in a cycle –- meaning that her body has been subject to the medical protocol to prepare for an egg retrieval, for example, and there was a risk of hyperstimulation if she did not go through with the retrieval -– then even if the patient was showing active signs of illness, the clinic may go forward with the procedure for the safety of the patient. The clinic would, of course, take all precautions for its staff. Moreover, O’Shaughnessy clarified that the clinic was proceeding with IVF cycles for cancer patients needing to freeze eggs or embryos prior to gonadotoxic chemotherapy.

COVID-19, so far, isn’t believed to be like the Zika virus, where there was a reason to fear birth defects for pregnant women who contracted the disease. But the evidence for that good news is scant so far, and at least one country has designated pregnant women as an “at risk” group.

Have A Plan A–Z. Or At Least Through C.

Of course, in more urgent matters, numerous intended parents are awaiting the imminent birth of their children via surrogacy. And while everyone is concerned for the health of the surrogate and the child, there is also a basic problem of logistics. Many intended parents do not live locally to their surrogates, and some are in Europe or China, making travel especially difficult.

I spoke with Carey Flamer-Powell, the director of a surrogacy matching and support program in the United States. Flamer-Powell explained that while the current situation is stressful for many, her organization has always required a three-step plan for intended parents to be responsible for their children in case they are unable to make it to the birth. For Plan A, intended parents should be doing everything they can to be sure at least one of them can make it to the birth to care for their child from the first moment. She noted that one parent she worked with from China recently had to route through Thailand, go through a 14-day quarantine, and then was allowed to proceed to the United States. He missed his child’s birth by two days, but was thankful to have made it fairly close behind.

For Plan B, all intended parents must have a local caregiver ready to take care of the child. That can be as simple as having a local friend or family member or a paid caregiver. Flamer-Powell explained that Plan C was that her organization would step in and provide care. (For an example of this happening, check out this podcast episode.) She has worked with other professionals in the field to form a network of people throughout the United States, and they are ready and willing to step in and provide care for a newborn if called to do so. That is one of those heartwarming moments where it is nice to see competitors coming together during difficult times, collaborating for the greater good.

Limiting In-Person Contact May Be Especially Significant. One provision of every basic surrogacy contract addresses who is permitted to be in the delivery room. Generally, the concern is only an issue when a C-section is necessary and the anesthesiologist limits persons present in the room. It may result in a difficult choice between the surrogate’s spouse (or other support person) or one of the intended parents being there to see their child come into the world. Now, that choice may become standard even if the birth isn’t by C-section, or, worse, a surrogate may be on her own, without anyone aside from medically necessary persons present as hospitals work on evolving protocols to minimize risk. And, if intended parents, or support persons, meet certain risk criteria, they may not be permitted in the hospital at all!

Legal Problems Ahead. In almost every state, the law presumes that a woman giving birth is the legal parent of the child. A judicial process is used to correctly name the intended parents as the legal parents of the child, and to relieve the surrogate of any presumed responsibility. As courts close, these legal presumptions are likely to become a bigger problem. Temporary fixes will need to be utilized –- such as delegations of power –- and birth certificates may be issued late or may need to be amended.

In the meantime, some of the routine work of surrogacy, such as the legal contracts, is charging ahead and incorporating new COVID-19 clauses. These are predictable so far; basically that everyone agrees to follow doctor’s recommendations to minimize risk. And I suspect these will expand to requiring parties to also follow governmental edicts and recommendation.

Of course, the situation could look very different in a week. Or tomorrow. Here’s to hoping it doesn’t get that much worse, and that we see improvement soon. In the meantime, take all of this seriously. Listen to what the professionals are saying. And be safe. For you and your future children.


Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.



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