Coronavirus Reference Guide and Resources for Assisted Reproduction

Coronavirus Reference Guide and Resources for Assisted Reproduction

May 25, 2020

This reference guide is meant for those persons that are going through Assisted Reproductive Services during the current COVID19 pandemic. Please note that this is not a substitution for a legal consult, which you should obtain from your attorney for your particular case. Additionally, the circumstances and current guidelines are changing on a daily basis and while I will try to continue to update this accordingly, please refer to your attorney for the most up to date information pertaining to COVID19 and your fertility journey. Lastly, this is not meant to give or replace any medical advice and a physician shall be consulted with the medical aspect as to any procedure discussed.

Intended Parents & Surrogates in Surrogacy

Contract Terms

The COVID19 pandemic has presented unique issues that have not before been contemplated in most, if not all, surrogacy contracts. Here are some of the contractual terms the pandemic may affect and may want to discuss in conjunction with your attorney when drafting the surrogacy contract:

  • Are there provisions specifying the precautions the parties should take in light of the pandemic and steps to take if coronavirus is suspected? 
  • If there is an initial escrow deposit or a monthly reimbursement that begins when the contract I signed? If treatment cycles have been postponed, you may want to modify the commencement of certain payments based on the delays occurring at clinics, if applicable at that time.
  • What is the term of the Agreement? You may want to consider the term of the Agreement in consideration of any possible future delays in medical treatment in the event of a new outbreak.
  • Are there possible situations where another lock down or government closure may affect your ability to comply with the Agreement? In the last few months this has applied more towards international couples as bank closures and flight cancellations had a large effect on contractual compliance, but something to consider nonetheless. 

Timeline

Reproductive Endocrinology clinics all currently have their own protocol as to safety precautions and day to day procedures when it comes to COVID19, so I recommend speaking directly with your cycle coordinator at that clinic to see if new transfer/ treatments are taking place and whether there may be a delay or change in practice at this time. Currently, per guidelines, most clinics can have a “measured presumption of care”. Please see below for the CDC clinical guidance recommendations and the ASRM current recommendations for scheduling treatment cycles. 

Coronavirus Effects on the Fetus; Maternal Health

Medically little is known about the transmission of COVID-19 in pregnancy, but so far the studies show that there is no vertical transmission from pregnant woman directly to baby in utero and the few studies that are available show that pregnant women are not necessarily at a higher risk of transmission or of adverse results than the general population. Please refer to your clinic and doctor to discuss their practices and guidelines/ plan for resuming treatment and your treating physician’s recommendations for safety during the pregnancy as well as COVID19’s effects on pregnant women.*

  • Society for Assisted Reproductive Technology released an example handout which states: (1) There is currently no scientific evidence showing that COVID-19 is transmitted to or carried by oocytes (eggs) or sperm. (2) There is very little research on a pregnant woman’s susceptibility to catching COVID-19. (3) There is no current approved treatment (medication) for COVID-19 (4) The small amount of data reported out of Wuhan, China and New York does not show any definitive evidence of intrauterine fetal infections with COVID-19; therefore, it is believed that the risk of transmission of COVID-19 to a fetus in utero is low or non-existent. 
  • ACOG: not giving recommendations to not be pregnant-
  • ASRM: delay in new treatment cycles; most reopening at the moment
  • World Health Organization; Q& A Pregnancy, Childbirth and COVID19: https://www.who.int/news-room/q-a-detail/q-a-on-covid-19-pregnancy-childbirth-and-breastfeeding 
  • The American College of Obstetricians and Gynecologists; Coronavirus, Pregnancy, and Breastfeeding: A message for Patients https://www.acog.org/patient-resources/faqs/pregnancy/coronavirus-pregnancy-and-breastfeeding

Travel

If you are traveling by plane to a different state for the birth of your child, please arrive at least 2 weeks prior to the birth (some hospitals are imposing a quarantine and will not release the child to the parents if the parents were recently on a plane or came from a COVID-19 “hot spot”). To avoid any delays in union with your child or participation in the birth, arrive early and communicate with your hospital and attorney to stay up to date with current practices and procedures as all hospital have their own policies at the moment.

Birth

It is important to be up to date with hospital procedures as well as legal protocol during the COVID19 pandemic as timelines and typical procedures may be affected both in the hospital as well as in the courtroom/ administrative government offices.

  • You may not be able to attend the birth. Most hospitals are currently allowing only one person to be present at the birth and that person cannot leave and come back or switch out with another person. Reach out to the hospital for their exact and most current policies and discuss the contract with your attorney so everyone knows ahead of time who that person will be.
  • Some courts have limited staff or access so hearings may be delayed and certain Vital Statistics offices (for the birth certificate) may be closed or short staffed so there may be a delay in obtaining your child’s birth certificate. Currently in Florida, there are no significant delays in hearings, but many counties are experiencing a delay in obtaining the birth certificate. 

International Clients

In addition to the topics listed above, there may be other issues with international clients during the COVID19 pandemic. You should discuss the following with your US attorney to ensure you have a plan and then a back-up plan in place during this time, as well as with the counsel retained in your home country to ensure the safest procedure and to be aware of the current allowances (especially for travel).

If you are already here in the United States and your baby is due soon, you may need to consider the following:

  • You may not be able to attend the birth. Most hospitals are currently allowing only one person to be present at the birth and that person cannot leave and come back or switch out with another person. Reach out to the hospital for their exact and most current policies and discuss the contract with your attorney so everyone knows ahead of time who that person will be.
  • If you are experiencing symptoms or have a high fever you should not go to the hospital for the safety of others. Additionally, some hospitals are screening visitors, so they may not allow you access if you are ill or running a fever.

If your baby’s due date is approaching, consider the following:

  • Discuss the current restrictions in arriving to the US with your attorney as they may differ between countries. Many international parents are able to enter since their child born of the surrogacy is a US citizen, but please discuss with your attorney as the law of your state could affect this. 
  • You may need to work with your home country’s embassy and/or department of immigration to get a flight to the United States during the current flight restrictions, as some commercial flights are completely canceled to and from certain countries. Discuss this with your attorney so they can provide what you may need to try and get a flight to the US during these times. This process varies on a case by case basis, but certain paperwork can be provided to help your case at the embassy or department of immigration in your home country.
  • Make sure you have an up to date passport and VISA for travel and check the expiration. Renewing might be delayed in your home country due to current closures. 
  • Try to get to the US at least 14 days prior to the birth to avoid the possible quarantine requirements of the hospitals as discussed above.
  • Consider not being able to get to the US for the birth. In the event you are not able to arrive, discuss the legal ramifications and possible options for your child’s care so that all of the proper legal arrangements can be made. This way you will have the proper documents drafted, signed, and notarized, and everyone can be informed of the back-up plan.
  • Some courts have limited staff or access (not allowing people to enter the court) so hearings may be delayed and certain Vital Statistics offices (for the birth certificate) may be closed or short staffed so there may be a delay in obtaining your child’s birth certificate. Currently in Florida, there are no significant delays in hearings, but many counties are experiencing a delay in obtaining the birth certificate. 
  • Flights for return back home may also be canceled/ nonexistent at this time, so start making travel arrangements and work with your home embassy as soon as possible to evaluate your options.
  • Plan on staying longer than the originally quoted time frame post birth. This may affect your VISA depending on how long you have to stay so discuss options for extending your VISA with your attorney as there are allowances for extending your VISA under certain circumstances. 
  • If you cannot get to your home country right away for your child’s medical care, discuss options with your attorney for obtaining medical insurance in the US during your stay. This may involve applying for the Social Security Number as well. Please also note that social security offices may be closed or understaffed at this time, and the application process may not be as usual. 
  • Passport: Once your child is born and you have a birth certificate you must obtain a passport for the child to get back home. The passport offices are only taking expedited passport applications for people who have a “qualified life or death emergency” defined as a “serious illnesses, injuries, or deaths in your immediate family (e.g., parent, child, spouse, sibling, aunt, uncle, etc.) that require you to travel outside the United States within 72 hours (3 days).” (you need to have proof as in a death certificate or note from a physician). Given the restriction, most people are applying for a passport with the traditional timeline (not expedited) which is 6-8 weeks. Note*: Many are experiencing that the normal timeline for passport is delayed at the moment as well. There have been instances where there have been allowances made for an expedited passport and passport appointment although not guaranteed, please discuss this with your attorney. 
  • Passport Operations in Response to COVID-19 (updated May 1st, 2020): https://travel.state.gov/content/travel/en/traveladvisories/ea/passport-covid-19.html

Attorneys

Other Resource Links

American Society for Reproductive Medicine 

American College of Obstetricians and Gynecologists

World Health Organization

Food and Drug Administration

FL Department of Health

US Department of Labor

US Department of State-Bureau of Consular Affairs

Gestational Surrogacy Process Timeline

Gestational Surrogacy Process Timeline

Feb 14, 2019

This is a summary of the general timeline of this process, please note that unique circumstances or variable occurrences may affect the timeline listed below.

Contractual Stage

1. Clients can reach out to the attorney at any point in the commencement of their surrogacy journey for (1) initial consult and (2) retention of the attorney’s services.

2. Once the Intended Parents have been matched with a surrogate, either independently or through an agency, and the parties have been medically and psychologically cleared, the attorney will reach out to clients to go over any information that may still be needed for the contract prior to drafting. If there is an agency involved, the agency will send confirmation of surrogate’s clearance and general information regarding the parties.

3. The initial draft of the contract will be sent to the Intended Parents for their initial review soon after confirmation of Surrogate’s clearance.

4. Clients and attorney will review the agreement and modify as needed.

5. Upon completion of the initial review, the contract is sent to the Surrogate’s attorney for her to review with her Attorney.

6. After negotiation, the final agreement is signed by the parties with a notary.

7. Once the contract is signed, legal clearance will be sent to the IVF Clinic Physician. With this legal clearance, the IVF Clinic can now begin the medical portion of the process and get the transfer scheduled.

Parentage Establishment

8. In the last trimester, Clients and Attorney will discuss the parentage proceedings and Attorney will obtain all of the information needed for the parentage establishment post birth. (A pre-birth order confirming the validity of the surrogacy and the information of the parties may be obtained prior to this, but consult with Attorney for specific details)

9. Attorney will prepare the legal documents required for the establishment of parentage, as well as, communicate with the birth hospital to make sure hospital has everything they need in preparation of the surrogate birth.

10. Upon birth of the child or children, Attorney will set a hearing which is typically scheduled within the next week following the birth.

11. The judgment is signed at the hearing and sent that day to Vital Statistics to obtain the birth certificate with the Intended Parents’ names on it. If the “rush” election is made, the birth certificate usually takes between 7-10 business days.

12. International Clients*: Once the birth certificate is received the clients can obtain the passport for the child or children within 2-3 business days of their appointment. Additionally, Attorney will order certified copies of the birth certificate and/or court order as needed.

  1. initial client consult & attorney retained
  2. surrogate is medically and psychologically cleared
  3. initial draft of the surrogacy contract review between Parents and Attorney
  4. contract is sent to Surrogate’s Attorney for Surrogate’s review
  5. final contract is signed and notarized
  6. legal clearance is sent to IVF Physician & Clinic
  7. embryo is transferred to Surrogate
  8. client attorney consult for birth information
  9. attorney reaches out to hospital to prepare hospital for birth
  10. child (or children) is born
  11. parentage establishment hearing is held & judicial order signed
  12. birth certificate is obtained
  13. International Clients: apostilled document copies ordered & passport obtained
  14. International Clients:  Clients can return home
The Surrogacy Contract

The Surrogacy Contract

Feb 14, 2019

Many wonder whether a contract between the Intended Parents and the Gestational Surrogate (and her spouse if she is married) is a necessity in a surrogacy matter. Simple answer is yes. Under Florida law, a contract is specifically required under Florida Statute 742.15. Section 1 of that statute states,

“Prior to engaging in gestational surrogacy, a binding and enforceable gestational surrogacy contract shall be made between the commissioning couple and the gestational surrogate.”

The statute goes on to list the specific requirements in order for the contract to be valid. Among those requirements are the age requirement, where the Parties to the contract must be at least 18 years of age. Additionally, the law states that the couple must not be able to physically gestate a pregnancy to term, or the pregnancy would cause a physical risk to the mother or to the fetus “within reasonable medical certainty as determined by a physician…”.

For those who qualify under the law, they can proceed with a contract. Without this contract in place, there is no legal basis for the Intended Parents to establish their parentage in court for a birth of their child via surrogacy. This means the Intended Parents would not be able to obtain a birth certificate with their names on it as the legal parents. Consequently, obtaining those parental rights over the child would become a drawn out legal process, which could end up in having to go through an adoption proceeding, even if the child is 100% genetically related to the Intended Parents. Something easily avoided with a proper contract in place.

Apart from the legal requirement, there are many other very important reasons to have a contract in place. A contract will protect the parties from legal disarray further down the road. For the parents it will provide the conclusive evidence of an agreement as well as allow for a streamlined paternity establishment at the birth of their child. For the surrogate, it will evidence her intent and keep her from having a drawn out legal situation or fall subject to any responsibilities, whether they be paternity or financially based. The contract will provide the proper remedies for any unforeseen circumstances and act as evidence of the expectations moving forward.

What does the contract include?

In order to provide these protections, the contract will provide for many things including, the parties’ intentions, the applicable law, the professionals involved and the insurance (medical and life) being utilized. The agreement will also address the parties’ responsibilities throughout the duration of the agreement as they pertain to their actions throughout, their financial responsibilities, their remedies in case of breach and responsibilities to third parties (i.e. confidentiality). The content of the contract should be such that all important scenarios and decisions are addressed then in the agreement, before the situation actually arises.

Inevitably, there are variable outcomes with every change in circumstance during a surrogacy journey and the agreement needs to anticipate those outcomes to protect everyone involved, especially the child. The terms included in a good contract are therefore constantly evolving for the utmost protection. One very important inclusion is the acknowledgement of and courses of action laid out for any potential disputes or unexpected events that may arise. The agreement addresses what could potentially occur for the safety of the parties, especially for a process that from a legal perspective is relatively new and hasn’t had as much litigation in Florida as other areas of the law. This lack of case law, makes it especially important to have a well drafted contract for the journey.

What does the contractual process look like?

Usually, the contractual stage consists of the following steps: (1) Parents’ attorney receives confirmation that surrogate has been medically cleared, (2) the initial contract is drafted and sent to the parents to review, (3) the parents review the contract with their attorney and modify as needed, (4) the contract is sent to the surrogate’s attorney, (5) the contract is negotiated, (6) the final contract is signed by all, and (7) parents’ attorney sends the Reproductive Endocrinologist a clearance letter stating that a legal contract is in place and that medical can move forward.

You can check out our surrogacy timeline for more information.

An important point to consider during the contractual stage is timing. Many like to rush through the contractual stage in order to get to the medical portion and a successful pregnancy (the ultimate goal and most exciting portion of the journey!), however, the contractual stage should be a phase of the process approached with patience, diligence, and thoroughness so that the rest of the journey is a positive experience.

Keeping that in mind, make sure to read everything thoroughly and ask any and all questions or doubts that may arise. Although initially overwhelming, that is what your attorney is there for. It is of the utmost importance, whether you are a parent or a surrogate, that you understand and agree with the contract you will eventually sign. The work put in at the beginning will pay off throughout the process.

Take Away? The hard work and attention to the contractual stage will allow for a safer and more predictable journey for everyone. Hire an attorney who stays current and up to date on national and international surrogacy outcomes and who is connected to the professional community. You want someone that will provide an effective contract which addresses those situations that may potentially affect their clients, even if not usual or common. You want to feel confident in your representation and the agreement you are signing. After all, there is enough unpredictability involved with an assisted reproductive procedure and many things that are not in a person’s control (i.e. successful pregnancy), but a good contract is something that can and must be done.

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