International surrogacy arrangements and planning for the unexpected

During these uncertain times and the evolving challenges arising from the impact of coronavirus disease (COVID-19), it is worrying for everyone but especially those who are expecting a child and unable to travel. Not being able to see their child is a parent’s worst nightmare.

We wanted to share some thoughts and offer practical suggestions.

Travel

COVID-19 travel restrictions and quarantine periods are preventing (and may continue to prevent for some time) intended parents from travelling to join new-born children, surrogate mothers and wider family.

Regarding travel restrictions, in particular the US authorities announced on 14 March 2020 that travel restrictions imposed previously on Schengen zone countries would now be extended to the UK (and Ireland).  We understand that US citizens and permanent residents of the USA, their close family members and certain other limited categories of visas holders are exempt and will still be able to travel to the USA, subject to normal entry requirements.  Those allowed entry to the USA may however be asked to self-isolate for up to 14 days after arrival. 

It is likely to be advisable for intended parents to travel now (or soon as they are able to depending on the delivery date) to be in situ earlier than planned so that they can be there when their child is born if that is an option available to the intended parents.

If immigration or travel clearance is required, experience tells us that it is useful to have letters explaining to the relevant immigration, Consulate or Embassy authority the need for such travel: for intended parents to be present for the birth of their child or shortly thereafter.

Contingency plans

Contingency plans also need to be put in place such as establishing temporary, standby or backup guardians and/or healthcare powers of attorney.  It might also be advisable to appoint another responsible adult to care for the child/children if the intended parents are unwell or prevented from travelling. 

Court applications

It is likely to be advisable for any applications for a parental order in England (a court order which makes the intended parent or parents the legal parents of the child and permanently extinguishes the parenthood of the surrogate and her spouse) to be drafted and ready in advance so that the application can be made shortly after birth to start the court timetable.

Applications to the court may also need to be made in the interim. At the time of writing, the courts (in England) remain open and are able to deal with urgent applications.

Wills and estate planning

It is important to protect everyone involved in a surrogacy arrangement and all those involved in a surrogacy arrangement should prepare or update their Wills in advance of the birth. Should the worst happen it will be important that your child and your partner are protected financially, particularly if you are not yet a legal parent.  

Our team

We appreciate that this is a difficult time for many families. We are making full use of video calling, conference calling and other electronic means of communication to ensure meetings take place virtually. We are here to support you.

If you would like to discuss, please contact Michael Wells-Greco at michael.wells-greco@crsblaw.com or Lucy Hitchen and lucy.hitchen@crsblaw.com.