COVID-19: Surrogacy guidance

Posted on 30 March 2020

The imminent arrival of a baby is an anxious time for all expectant parents. However, the COVID-19 outbreak has resulted in particular challenges for intended parents of babies due to be born by way of overseas surrogacy arrangements.

The introduction of extensive travel restrictions and compulsory quarantine periods in many countries, including the US, are likely to result in it being difficult, or impossible for intended parents to be present at the time of the birth – something which is likely to prove particularly heart breaking.  Some jurisdictions, such as the US, have created exemptions on travel restrictions for those with immediate family in the destination country. If, upon the baby's birth, the intended parents are recognised as the legal parents in that country, it may then be possible for them to travel to meet their baby. Specialist immigration advice should be sought both in the intended parent's country of residence and the country in which the baby is due to be born in advance of travel. In particular, if travel bans are in place, assistance may be required to enable intended parents to travel to the country where the baby is due to be born.

If travel restrictions or quarantine make it impossible for intended parents to be present at the time of birth and immediately thereafter, consideration must also be given to the appointment of another adult/s to act as guardian and/or attorney for the purpose of caring for the baby, making decisions if required in respect to medical treatment and for administrative purposes, for example, in order to make applications for birth certificates and passports.  Such an appointment would require the preparation of documents to be executed and transmitted to the relevant country in advance.

Travel home for intended parents and babies may also be problematic.  In the US there may be delays in the issuing of US birth certificates and passports. Where babies are born in the US, the fastest way to bring them home to the UK is using their US passports which can ordinarily be obtained on a 24-hour processing basis using an expedited service.  However, the US Government announced last week that during the COVID-19 outbreak it would only issue US passports on an expedited basis in a life or death situation and all other applications for US passports would be processed using the standard processing services which can take six to eight weeks at present.   Therefore, this may result in intended parents being required to stay in the country where the baby is born for longer than expected which could also lead to immigration issues for intended parents.

In the UK, it remains the case that a Parental Order application must be made for the purpose of transferring legal parenthood from the surrogate to the intended parents. This application should be made within 6 months following the baby's birth.  Whilst the UK Family Court currently remains open, it is expected that there will be delays and/or an increase in hearings taking place remotely. Until such time as a Parental Order is made, intended parents in the UK do not have the necessary parental responsibility required for the purpose of making important decisions in respect to a child's welfare.  Depending upon the speed with which the UK Courts are able to process such applications, it may be necessary for other steps to be taken in order to manage the exercise of parental responsibility pending a Parental Order being made, for example by obtaining letters of authority from the surrogate.

We are here to support clients through the practical difficulties presented by such arrangements in such uncertain times. Please contact Barbara Reeves, Maria Patsalos, Emma Wiling or Natalie Loader if any assistance is needed.

Practical guidance for COVID-19
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