By: Tim Schlesinger
Each year, thousands of children are born in the U.S. through surrogacy. A gestational carrier carries a child (not her genetic child) for the benefit of the parents who will love and raise that child. Under normal circumstances, it’s a smooth process. A written agreement is signed. Hopefully, the gestational carrier gets pregnant, a baby is born, and everyone is present for the delivery. The parents are there at the hospital and immediately care for the child. A court quickly enters an order declaring them to be the parents of the child, and a birth certificate is issued in the names of the parents.
We are now, due to the COVID-19 pandemic, operating under circumstances that couldn’t be further from normal. To protect themselves and the general public, courts are not holding hearings, hospitals are not allowing visitors, and agencies such as the Missouri Bureau of Vital Records are operating with skeleton staffs and prohibiting in-person appointments. What does this mean for parents and gestational carriers who are in the midst of pregnancies and are nearly at the end of the surrogacy journey?
First, the experience at the hospital is dramatically altered. Parents having a child through surrogacy have often traveled a lonely and traumatic road through infertility and have waited many years to have a child of their own. Traditionally, except in emergencies, parents are in the delivery room with the gestational carrier when the baby is born. The parents stay in the hospital with the baby until the baby is discharged. Now, unfortunately, hospitals are instituting policies to severely limit the people in delivery rooms (usually just one), and are limiting or prohibiting parents from staying in the hospital. Every hospital is in charge of its own policies, but parents, after years of waiting, may not be allowed in the hospital until immediately after the baby is born. Then, rather than staying in the hospital, they may be limited to visiting the baby in the nursery. It depends on the hospital. What happens if one of the parents gets sick near the time of the baby’s birth? Both parents would be quarantined and not allowed to go anywhere near the hospital. Provisions need to be made so that some third party (ideally a family member or close friend) can take the baby and care for the baby for a (hopefully) short time in case the parents are unable to travel to the hospital for the baby’s birth or are unable to care for the baby.
Second, the process of getting the judgment and the birth certificate has been slowed down considerably. Courts and state agencies are operating, but are handling most matters remotely and with reduced staffs. Although parents will still get a judgment declaring them to be the parents, obtaining that judgment is taking longer. In states where parents can obtain pre-birth orders, the orders may come after the baby is born. State bureaus of vital records will likely run far behind and obtaining birth certificates is likely to take months after the child is born. (This applies to parents who live in the U.S. For parents who live outside the U.S. but are having children through surrogacy in the U.S., the problems are more complex, but those of us in the field are working furiously with policymakers and with the State Department to solve those problems).
This crisis adds unfortunate stress to a time which, for parents, should be purely a celebration. However, there is good news. First, the fundamental reliability of the legal process hasn’t broken down; it is just taking a little longer. Hospitals, courts, and bureaus are accommodating and adapting to the new environment and doing the best they can to honor what these parents have been through, while trying to keep everyone safe. Parents are caring for their babies, getting the judgments they need, and getting the birth certificates they have long awaited.
Second, policies are changing. For example, the governor of Missouri entered an executive order on April 6 suspending the requirement that signatures requiring a notary must be witnessed in person. Courts are finding new ways to enter judgments and have hearings, previously conducted in person, held remotely. Finally, this crisis is temporary. Parents are forced to be patient, but with an understanding of the unprecedented circumstances in which we find ourselves. Policies and procedures may change permanently for the better. When the next crisis hits in a manner affecting the people who depend on the reliability of the legal system, we will be better prepared.