Covid-19 and Surrogacy Down Under
Posted: 04 Sep 2020
Fellows Margaret Casey QC and Stephen Page report on issues resulting from Covid-19 relating to surrogacy in New Zealand and Australia and how these issues are being managed.
In New Zealand a new protocol has emerged during the Covid-19 environment. This is New Zealand’s solution to an emerging issue for intended parents of international surrogacy cases. Many parents are having difficulty accessing travel documents from the country of birth if they are intended parents from a jurisdiction who do not recognise their child’s citizenship based on the genetic link. New Zealand is one such country who has a protocol for international surrogacy and transfer of parentage that involves the grant of a special visitor visa for children born overseas. The expectation is that they will use the passport from the country of birth to travel back to New Zealand where they will undertake a customised adoption process to enable their child to be adopted under New Zealand law. New Zealand citizenship and the right to a passport will follow once the adoption order is made.
New Zealand couples, like many parents who undertake their surrogacy in the US, have experienced delays in obtain their US passports. This has prevented travel back to their home country and caused anxiety over issues such as visa entitlement, insurance challenges as well as the risk of negotiating life in a State where Covid-19 may be rife.
At Margaret Casey's suggestion and having trialled it with one case, earlier in April when she anticipated it would be a one-off situation, the Principal Family Court Judge alerted to the issue has accepted there needed to be a new method of dealing with these cases. What is now going to happen (and has already happened in fact this week) is that the Court will undertake the adoption hearing while the parties are offshore. The parents already have a pre-existing relationship with the social worker who provides the Court with an updated report having met with the parties via Zoom post birth. Submissions are filed in the Court and urgently allocates a hearing to consider the adoption application.
In both cases this week the Court has allocated a hearing within 3 days of the application being filed and Orders have been made, registered with Births, Deaths and Marriages and passports available within 24 hours to be sent to parents in the US.
It is only a protocol in place until March 2021, but it is a good news story and a great example of collaboration between bench and bar and relevant Government agencies to recognise the importance of the children and the families affected by this pandemic in a specific way.
Stephen Page reports that matters continue to be very difficult for Australians going abroad for surrogacy:
- Permission is needed for most Australian citizens and permanent residents to leave Australia - to be obtained from the Department of Home Affairs. Recent news reports have said that 75% of those applications have been refused. Intended parents have been obtaining permission to leave for overseas- but sometimes have had to apply up to three times, and occasionally have not been allowed to go until after their child has been born. This has caused them to ensure they have carers in the country where the child is born- something that often can be difficult to achieve. A client of mine arranged as the last resort that his surrogate in Pennsylvania was to be the carer in case he could not be there on time. Clients whose child was born in Washington State could not be there on time- and arranged private foster carers to care for their child. The Prime Minister has posited that the travel ban will be in place until Christmas, and possibly mid 2021.
- There have been great difficulties for Australians whose children were born in the Ukraine and Georgia, because of those countries preventing entry ( the same issue that was seen in the nursery full of children video from Biotex.com). I am not sure if Australian intended parents have been able to enter and leave with their children.
- Australian intended parents going to Canada have had considerable difficulty in getting into Canada- because that country restricts who can enter. With some care, Australian intended parents can enter- but cannot have anyone travel with them as a support person who is not either an intended parent or a Canadian citizen.
- Australia is not one of the banned countries on the US list by which entry is not permitted. However, there have been great difficulties at times for intended parents to get US visas (as the State Department just stopped issuing any visas at all) and at times there have been minor delays for intended parents entering the US on ESTA. ESTA is not being issued by the US currently. The minor delays involved being questioned by US officials on arrival about the reason for entering the US. Mostly this has gone smoothly. I recommend all my clients take the full bundle of documents in case they have a difficult officer. A client who arrived in San Francisco was briefly detained because the officer (remember this is San Francisco) did not know what surrogacy was. Once he understood what surrogacy was, my client was welcomed with open arms
- Getting there is extremely hard. Currently there is only one trans-Pacific flight between Australia and the US- on United Airlines Melbourne/Sydney to San Francisco. Qantas ceased all international flights (except the occasional government sponsored mercy flight) in March. It is not expecting to fly internationally again until at least 28 March 2021.
- There continue to be great delays in parts of the US in the time it takes to issue court orders, who can attend hospital and when (It can be difficult for intended parents to be allowed to attend at the births of their children) and the issue of birth certificates. It’s patchy. In some places there are no significant difficulties and delays, in other places it’s very difficult and slow. It is still taking typically months for US passports to issue. US passports can issue for life and death matters- and it seems to be a matter of interpretation by different offices in the US as to what is considered to be life and death. The universal advice of US ART lawyers is to seek to rely on home country documents to leave the US, rather than US documents.Current expectations are that these delays with passport processing times will last months yet. Last I heard, US State Department had a backlog of 1.4 million applications, down from the peak of 1.7 million.
- There are no great delays with the issue of court orders, birth certificates or passports in Canada. Things there are pretty much normal, although Canada requires (as does the US) for intended parents to have 14 days self-isolation on arrival.
- In the past, Australian intended parents in the US or Canada would typically obtain a US or Canadian passport, then obtain an Australian visa waiver (called an electronic travel authority) for their child to travel as a US or Canadian citizen as a tourist to Australia- and then obtain Australian citizenship on return. Australia stopped issuing electronic travel authorities in March. While Australian authorities have occasionally issued travel visas for the children, typically they refuse to do so and insist applications for citizenship be made overseas. In the past this would typically take 2 to 4 months. The Australian Government has looked kindly on these applications in the pandemic and processed them in 1 to 5 days. It has also issued emergency passports in 3 business days. In one case of Australians going to Mexico for surrogacy (and transiting through the US) special arrangements have been made by the Australian Government as to the issue of the emergency passport to enable the child to transit through the US. Usually an emergency passport does not include a chip- which ordinarily makes transiting through the US impossible.
- On the way home involves price gouging by the few airlines that are flying. Rather than economy airfares of A$1600, they have been A$16000. The highest price i was told was from clients who had to fly back business as there were no seats- at a cost of A$52,000 for the couple, their toddler and new born for one way tickets Dallas to Sydney. The Australian dollar is currently worth US$0.72. They had an alternative- which was A$48,000.
- They often cannot get back on time because the Australian Government has imposed caps on the number of people allowed to land. At Brisbane, for example, it is 500 passengers per week. There are regular media reports of thousands of Australians stuck overseas as a result. These passenger landing caps are part of the reason for the price gouging by the airlines. Some flights have as few as 4 passengers- all of whom are in business class.
- On arrival, they are mandated to spend 14 days quarantine in government contracted hotels- at the expense of the parents. This can be as much as A$4,000. The pandemic has seen the arrival of internal barriers in Australia for the first time since the last pandemic. Some unfortunate people trying to get home have had 14 days quarantine in their arrival port (at their expense, as directed by the government) and then somehow managed to get one of the few domestic flights at high expense interstate to then be met by a second period of 14 days quarantine in their home State (again government directed but paid for by the parents).
- Then they can go home.
Not surprisingly, some of Stephen's clients have been quite traumatised by the whole process and extra costs. He is concerned about long term damage to their relationships and adverse impacts to the children concerned as a result.
There have been media reports that that there has been an increase in the pandemic in the number of couples seeking to become parents. Stephen could vouch for the accuracy of those reports. Despite all the difficulties in current travel- there has been a remarkable increase in the number of intended parents seeking to become parents overseas.