Family Law

The COVID Clause: Adding A Term To Surrogacy Contracts

One consequence of the COVID-19 epidemic is that it provides an opportunity to reconsider in greater detail aspects of surrogacy contracts.

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Before intended parents can expand their family through surrogacy, they have to enter into a contractual agreement with a gestational carrier, or surrogate, who physically carries the baby. The surrogacy contract spells out the specific terms of the arrangement, like the amount of compensation, who covers certain expenses, what to do in unforeseen circumstances, and even minutiae like whether the surrogate is allowed to drink coffee or travel to certain places. (Now is probably a bad time to visit New York.)

As you can guess, COVID-19 is causing lawyers to change some of the standard contractual provisions in these arrangements. COVID-19 has taken hundreds of thousands of lives and derailed the world as we know it. Even basic fertility treatments and surrogacy were put on hold for a while, as we sheltered in place and socially distanced ourselves. And, while we know this is far from over (unless maybe you are New Zealand), fertility clinics have started to resume, or are preparing to resume, treatments. I’m cautiously optimistic that this is good news for intended parents and surrogates alike.

Of course, surrogacy contracts, like most contracts, often contain provisions about how to handle worst-case situations. What if the surrogate is placed on life support during the pregnancy? What if the intended parents both die during the process? And, less extreme, what if the surrogate eats deli meat that has not been heated above 165 degrees?

The pandemic has brought to light new issues, and some old ones, that have become more prevalent. Now, certain “worst-case scenarios” or “unlikely situations” have become much more likely, and some new situations have arisen that we never imagined. Here are a few areas to consider when thinking about contract overhauls and updates in light of the new reality, however long this may last.

Medical Unknowns. While some reports have been hopeful indicating that the novel coronavirus is unlikely to be transmitted vertically in pregnancy (so if surrogate has it, baby is not likely to get it during the pregnancy), other, scarier reports indicate that vertical transmission could be a concern. And while some experts have reported that pregnant women may face no higher risk than nonpregnant people when it comes to the effects of the virus, others indicate that there may be greater risk for a pregnant woman. The data is sparse, unsurprisingly, and there is much we do not know yet.

For purposes of the contract, intended parents and surrogates entering into a surrogacy arrangement need to fully acknowledge that there are a lot more unknowns than usual, and major ones at that. Are there long-term effects of contracting COVID-19 while pregnant? To the surrogate or to the child? Contracts need to contemplate the new assumptions of risk of the parties, and to think carefully about risk allocation.

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Travel and Restricted Activity. Most surrogacy contracts already contemplate that the surrogate will give up some rights to travel. Intended parents do not want a surrogate heading into an unfriendly jurisdiction where parental recognition could be a problem, or where out-of-network medical costs could skyrocket. Of course, unrelated to surrogacy, most of us are currently experiencing severe travel restrictions under local or state lock-downs and international travel bans. Breaching those restrictions, with a few exceptions, so far has had little consequences or penalties.

A surrogacy contract may need to consider these consequences in more depth. Intended parents will want their growing child protected as much as possible. And that likely means a surrogate following shelter-in-place and social distancing orders and recommendations. If a surrogate is bound to those in the contract, acting otherwise (like heading to a crowded beach during a shelter-in-place order) may mean a breach of contract, with possible damages.

Back-Up Plans for Care of Child. While it is standard procedure to name a back-up guardian should something happen to the intended parents during the pregnancy, those back-up plans, and the back-up plans to the back-up plans, have become increasingly crucial. Prior to the pandemic, there was the occasional intended parent who didn’t make the birth, such as when a kiddo made an earlier-than-expected appearance in the world. Now, despite intended parents’ best intentions and best efforts to be at the birth and to be there to care for their child, many are stuck thousands of miles away. Travel bans are causing international intended parents to be denied entry or to be unable to book a flight to get them to the birth location. In this recent episode of the podcast I Want To Put A Baby In You, Attorney Robin Pope of Oregon talked of numerous stranded intended parents either unable to make it to their child or unable to return home with their child, including the situation of a Chinese intended parent whose baby was born in February, but who still has been unable to make it to the United States to be joined with his child!

Contracts now need to include much more extensive back-up plans. Who will take care of the baby if the parents are unable to make it? For a few days? What about a few months or longer? What if the back-up carer contracts COVID-19 and becomes unavailable? How will medical and other key decisions be made? How will expenses be handled? While these fears were less likely to materialize in the past, now they must be confronted in literally every contract.

Presence in Delivery Room. The traditional question is: If only one person is allowed in the room with the surrogate for delivery, such as in the case of a C-section, will that person be her spouse/support person or an intended parent? Now, this question is being taken to another level. Many birthing persons are not allowed to have anyone (other than medical personnel) in the room with them. And, of course, if any of the candidates to be present have been exposed to the virus or check certain higher-risk criteria, they may not be allowed in the hospital at all. Time for more back-up plans.

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Anticipating Delays. Many contracts contemplate naturally expiring if no transfer or pregnancy occurs within 12 months of the contract’s effective date. Given interruptions in services, the parties may want to reconsider how long they are willing to be committed to this process with each other if significant delays occur.

Hopefully, in less time than feared, COVID-19 clauses will go the way of the old Zika ones. Remember Zika? Scary effects, but oh boy were those simpler times. Some day we may think, “Oh, right. I remember when COVID-19 was a big deal. I wonder if anyone gets that anymore? Good thing the schools and bars are open.” Wishful thinking. Until then, attorneys should take extra steps to prepare clients to be flexible and expect the unexpected.

Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.

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