Coping with the coronavirus pandemic and restrictions make a surrogacy arrangement all the more complex.

Published 29 April 2020. The situation changes from day to day, and you should check that the information you are seeking is up to date.

Surrogacy teams who are navigating pregnancy, birth and the fourth trimester surrogacy during coronavirus have been seeking support and advice for how best to handle the situation they find themselves in. Katrina Hale and I presented a webinar on 28 April to talk through these issues, which was presented to the Australian Surrogacy Community. Below are a summary of my notes and presentation; you can also watch the webinar by joining the Australian Surrogacy Community Facebook group.

Travel during Coronavirus

There are different regulations for entering each state, so I won’t bore you with details of each of the state laws and restrictions on travel. Suffice to say that if you have an interstate surrogacy arrangement and a pregnancy underway, your best option is to search for details for travel into the state, and back home to your state, and what that requires. If you have difficulty finding clear or credible information that applies to you, get in touch and I can help.  Some states require travellers to apply for a permit to enter the state, and there are also some requirements to self-isolate for 14 days on arrival or upon your return home.

What you need to consider:

  • Are we allowed to travel to our destination state and does our travel require a permit?
  • What paperwork do we need when we speak to authorities about our travel?
  • Once we arrive, do we have to self-isolate, and what does this involve?
  • Does our return travel back home require a permit or self-isolation when we get home?

Surrogacy arrangements are not specified as particular exemptions for travel or for people spending time together in other houses. It’s fair to say the law makers were not considering the impact of travel restrictions on a surrogacy arrangement.

If you are worried that you won’t be allowed to travel for the birth, rest assured that while surrogacy arrangements haven’t been included in the exemptions, family law arrangements have been. All states are allowing for travel between states and within the state on compassionate grounds, and that includes to facilitate time between a child and their parent, for custody arrangements and carers of dependants. We are working from the premise that if you have a pregnant surrogate or a recently birthed surrogate, the two households can travel and spend time together and in my opinion, this is probably ok.

I have two caveats on the above. One is that each state is different, and if you are worried then get in touch and we can work through it together. The other caveat is that while I think travelling between the households and interstate is ok, I’m not making a decision for you about what is right in your situation. Each team and family needs to make decisions that suit them, but from a legal standpoint I think travelling and spending time together because of the surrogacy arrangement is likely fine.

If you are worried about meeting any requirement for travel, I suggest travelling with documents that provide evidence of the surrogacy, or the birth. These might include:

  • The surrogacy agreement.
  • A letter from the surrogate’s GP indicating that she’s pregnant and her due date.
  • A letter from the IVF clinic confirming the pregnancy and the surrogacy.
  • Or a one-page document that I’ve drafted that outlines the arrangement and the reasons for travel. I’ve provided one for the birth family and one for the intended parents and you can amend it or write your own. It’s really just something to have on hand when you’re trying to show why you’re travelling. You can download the templates here.

Hospitals and Surrogacy Birth during Coronavirus

Hospitals will have their own policies around COVID-19 and managing pregnancies and birth. From a legal standpoint, we’re taking the same approach that we always do with planning a surrogacy birth. Hospitals have their own policies and they have to follow the laws. Most surrogacy teams find that they have to advocate for themselves to get the support they need for the pregnancy and birth, for example to get more than one support person in theatre. The COVID restrictions are tighter and may exclude more support people, including birth photographers or even the intended parents.  But just as usual, you can try and advocate that your surrogacy arrangement is different from the norm and ask to have some discretion applied to your situation. Unfortunately, the hospital is likely to be stricter than usual on visitors and support people, and that’s the same for all pregnancies and births. You may benefit from this post about Hospital Management of a Surrogacy Birth.

Several hospitals have placed strict restrictions on visitors and support people, and I’ve had some success supporting surrogacy teams to negotiate with the hospital to apply different rules for their team. Surrogacy birth is different from a usual birth situation and requires a different approach.

Remember the importance of birth photography for surrogacy births, and if you cannot get your birth photographer into the room (or the building!) then try and take lots of photos anyway, and ask the medical staff to help if they can. Documenting the labour and birth, even on a smart phone, is better than not documenting it at all.

Practical stuff – caring for a surrogacy team during the Coronavirus

Some questions have been raised about how intended parents can support their surrogate during pregnancy and in the fourth trimester, given COVID restrictions on spending time together, and not being able to do the usual social activities together. Again, each team needs to make their own decisions for what is best in their circumstances. From a legal standpoint, most states are now allowing for people to spend time together if they are in the ‘bubble’ or family and they keep the numbers down. You should check the rules for your state, but rest assured from a legal standpoint you can probably spend time together and are unlikely to be breaking any laws now. Some tips for supporting the surrogate family while everyone is limiting contact and staying home might include:

  • Meal drops on the doorstep, or meal deliveries from local restaurants.
  • Hiring a cleaner may be ok now, if everyone behaves sensibly.
  • Spend time with the surrogate’s children over Facetime, or send them letters and small gifts. Keep maintaining those relationships even if you cannot be nearby. I know many children are maintaining relationships with their extended family in lots of creative ways – intended parents can do the same.
  • Take the kids for a long walk or a bike ride, and let your surrogate stay home and make herself a cup of tea.
  • Remember your love languages, and find creative ways to show and receive love from each other. One of my love languages is quality time – and that can be achieved through a long phone call or Facetime. You don’t need to be physically present to show love (although the love language of touch might be more of a challenge – Katrina suggests hugging a pet or a cushion if you need to!).
  • Other support suggestions can be found in this post, and ideas for care packages for surrogates and donors.

In short, our advice is that you don’t get too tangled up in thinking about what the pregnancy, birth or fourth trimester ‘should’ look like. COVID-19 creates some new opportunities and some limitations – but if you can be creative and focus on the main principles of a positive surrogacy arrangement, then the team should be able to work through the challenges as best you can. Take care –  and good luck. And reach out for support if you need it.

More information about the impact of the pandemic on surrogacy arrangements here and overseas can be found in this post.

You can find more information in the free Surrogacy Handbook, reading articles in the Blog, by listening to more episodes of the Podcast. You can also book in for a consult with me below.

Hi! I’m Sarah Jefford (she/her). I’m a family creation lawyer, practising in surrogacy and donor conception arrangements. I’m an IVF mum, an egg donor and a traditional surrogate, and I delivered a baby for two dads in 2018.

I advocate for positive, best practice surrogacy arrangements within Australia, and provide support and education to help intended parents make informed decisions when pursuing overseas surrogacy.

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