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

Sirin Kale

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 in the US, home to Amsterdam, when a message popped up. Due to coronavirus, the US authorities would only be issuing passports for life-or-death emergencies. Everyone else would have to wait.

As a result, Washington and his husband, Rob, 36, and their 11-day-old baby are stuck in an Airbnb in Portland, Oregon. Under normal circumstances, the Washingtons would have applied for a US passport for their son, taken him home and applied for a parental order through the British courts. (Both men are British citizens.)

But they cannot now get the US passport, and the British passport office will not issue emergency travel documents as UK law does not yet recognise their son as a British citizen. (Technically, his surrogate mother and her husband are his legal custodians.) “We are stuck,” said James.

The Washingtons are not the only parents to have utilised the US’s comparatively relaxed surrogacy laws and then 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,” said Robin Pope, an Oregon family lawyer and assisted reproduction specialist.

Pope has been keeping an unofficial tally of the babies born via surrogate who are now trapped in the US. According to her list there are 21, and more than 100 more babies are expected to be born via surrogate in the coming months. The parents come from countries including France, Singapore and Israel. Pope knows of a father from China who 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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Brilliant Beginnings, a British surrogacy agency, 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,” said Natalie Gamble, of NGA Law, a 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 struggling to bring home their daughter born via surrogate in the nation of Georgia. “It’s the same problem, because the baby is not automatically British,” Gamble said. “If they could get emergency travel documents, they’d be able to get their baby home.”

British parents of children born via surrogate abroad can make an application to the Home Office for a British nationality registration, thereby entitling the child to emergency travel documentation, but this process can take up to six months. “They can’t be stuck there for six months,” Gamble said. She has written to the home secretary, Priti Patel, 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 that 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 said.

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. If any of them were to get sick, that would be an enormous problem.”

And since 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.

A state department official said: “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.

“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.

The Washingtons have made repeated trips to various local government offices to get papers printed and notarised, risking 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,” said James, “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 family have a return flight booked for 4 April but it is looking doubtful 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 son.

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