Parenting

Surrogacy: new parents stuck in US amid Covid-19 shutdown


James Washington, a 37-year-old lawyer originally from Norfolk, UK, was on the US Department of State website last Thursday trying to arrange a passport to take his newborn son, born via surrogate, back home, when a message popped up. Due to coronavirus, the US authorities would only be issuing passports for life-and-death emergencies. Everyone else would have to wait.

It’s a decision that has left Washington and his husband, Rob, 36, stuck in an AirBnB in Portland, Oregon, with an 11-day-old baby. Under normal circumstances, the Washingtons would have applied for a US passport for their son, before bringing him back to their home in Amsterdam, and applying for a parental order through the British courts. (Both men are British citizens, but live in the Netherlands.)

But as the coronavirus shutdown has caused US passport offices to close, the men cannot apply for a passport for their son, who was born on the 15 March. And as UK law does not recognise their son as a British citizen – technically, his surrogate mother and her husband are his legal custodians – the British passport office won’t issue emergency travel documents to allow him to fly home. “We are stuck,” says Washington.

The Washingtons aren’t the only parents utilising the US’s comparatively relaxed surrogacy laws to have become trapped by the coronavirus pandemic. “There are hundreds of families currently stuck, or about to be stuck, in the US right now because of coronavirus,” says Oregon family lawyer and assisted reproduction specialist Robin Pope.

Pope has been keeping an unofficial tally of the babies born via surrogate who are currently trapped in the US. According to her list, there are 21 children stuck in the US, and over a hundred more babies expected to be born via surrogate in the coming months. Their parents come from countries including France, Singapore, and Israel. Pope knows of a father from China has been unable to get into the US to meet his child, born via surrogate in February, because the US banned foreign nationals arriving from China on 31 January.

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British surrogacy agency Brilliant Beginnings has eight babies due to be born via US surrogates in the next six months, and three babies, including the Washingtons’ son, currently stuck there. “Their parents are extremely worried about how they will get to the US in time for their birth,” says Natalie Gamble of NGA Law, a leading UK expert in fertility and surrogacy law. “These babies are their babies and they need to be responsible for them from birth.”

Gamble is also aware of a British couple currently struggling to get their daughter, born via surrogate in the nation state of Georgia, home. “It’s the same problem,” Gamble says, “because the baby is not automatically British. If they could get emergency travel documents, they’d be able to get their baby home.”


Although British parents of children born via surrogate abroad can make an application to the Home Office for a British nationality registration under existing UK law, thereby entitling the child to emergency travel documentation, this process can take up to six months. “They can’t be stuck there for six months,” Gamble says. She has written to the home secretary, asking her to intervene and make emergency travel documents available to these children.

Pope has been working with the Oregon senator, Ron Wyden, to get the US passport office to issue an exemption for children born via surrogacy, so their parents can get them back home. “We need the passport agency to include surrogacy in their definition of an emergency, so parents can get passports for these babies,” Pope says.

Pope is particularly concerned about what would happen to these children or their parents should they contract coronavirus. “The way our healthcare system works, you need to be resident to get health insurance,” says Pope. “If any of them were to get sick, that would be an enormous problem.” And as many governments are now advising against all international travel for their citizens, it is unclear whether travel insurance providers would pay out if any of these children or their parents contracted coronavirus.

“In an effort to reduce the potential spread of Covid-19, the Department of State’s domestic passport agencies have restricted passport services at our public counter to applicants with life or death emergencies traveling within 72 hours only,” says a Department of State official.

“We recognise that this is a very challenging time for US travelers, and we are doing our utmost to balance the safety and health of our workforce and customers with the needs of customers with life or death emergencies.” The Home Office did not respond to a request for comment.

Already, the Washingtons have had to make repeated trips to various local government offices to get papers printed and notarised, exposing them and their newborn son to coronavirus. If having a baby by surrogate abroad is an administrative hoopla at the best of times, during the coronavirus pandemic, it is a bureaucratic nightmare.

“We don’t want this time to pass us by,” says Washington, “but I’m spending so much of my time in front of my laptop trying to sort this out, it feels like I’m at work.”

The Washingtons have a return flight booked for the 4 April, but it’s looking doubtful that they will make it. Meanwhile, as they wait in hope for the US passport office to reopen, their 29-year-old surrogate has been pumping breast milk for their infant son.

“As we’re social distancing, we do doorstep pickups of the milk only,” says Washington. “It’s hugely tough.”



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