COVID-19 throws a wrench into fertility plans

Melissa Salfi is a Vancouver lawyer specializing in family and fertility law at Crossroads Law. 

While most of us are learning to cope with the uncertainty brought by COVID-19, a subset of our population is intimately familiar with this feeling. Couples struggling with infertility are accustomed to dealing with uncertainty, often for years. Faced with a global pandemic, individuals undergoing fertility treatments are now in a particularly precarious situation as their journey towards parenthood has been put on hold.

At the best of times procedures like IVF are complicated and the results are unpredictable. And now, during COVID-19, these procedures have come to an almost complete halt. Fertility clinics across the nation have put a hold on performing most fertility treatments, including new IVF or egg freezing cycles, Intrauterine Inseminations (IUI), and Frozen Embryo Transfers (FET).

The Canadian Fertility and Andrology Society (CFAS) issued a guidance document on March 18, 2020 recommending that fertility clinics drastically reduce in-person interactions and instead conduct consultations by telemedicine or phone, postpone any new cycle starts for IUI, IVF, and FET (except urgent cryopreservation for oncology), and suspend all diagnostic and elective procedures and surgeries. The CFAS has recommended that clinics only complete IVF cycles for patients who are currently undergoing treatment, but that this be done using freeze-all only as opposed to fresh embryo transfers.

On April 29, 2020 the CFAS stated: “It is our understanding that most fertility clinics in Canada, alongside other specialties, have severely curtailed services in order to preserve healthcare resources including personal protective equipment (PPE), and to limit staff and patient exposures to coronavirus.”

The main reason for the suspension of fertility services is to protect patients and staff and limit the transmission of coronavirus in the community. Genesis Fertility Centre in Vancouver issued a statement saying that “…the decision to pause starting new treatment cycles is based solely on what we feel is our social responsibility to limit the transmission of Coronavirus and protect our patients, staff, and community – not based on any risk posed by Coronavirus on pregnancy…”.

Currently, there is no conclusive evidence that the virus can be transmitted through sperm, eggs or embryos to a fetus. The evidence of vertical transmission from a pregnant woman to a fetus also remains inconclusive. A study published on in JAMA Pediatrics on March 26, 2020 examined 33 babies born to women with COVID-19 in Wuhan, China. The study found that three of the 33 women gave birth to babies who tested positive for coronavirus on their second and fourth day of life. These neonates contracted coronavirus despite the fact that stringent infection control and prevention procedures were implemented during the delivery, the hospital during their birth to prevent infection. This report suggests that it’s possible that pregnant women with COVID-19 can transmit the virus to their babies in the womb, but there is not enough data to conclude this with certainty. The good news is that the symptoms experienced by the full-term newborns were mild and all three newborns, including the one that was born prematurely recovered.

At this time, not enough is known about how coronavirus impacts reproduction and pregnancy to make conclusions. It is, however, known that pregnant women have a weaker immune system and are at higher risk for complications from severe respiratory infections like pneumonia.

On the bright side, the CFAS has recently set out a framework planning for gradual resumption of services.

While individuals struggling with infertility are facing an uncertain future and many couples have experienced immense disappointment from having treatment cycles canceled or indefinitely postponed due to the pandemic, COVID-19 has also thrown a wrench into the surrogacy process. Parents whose babies are being born through surrogates are fighting to be able to see the birth of their highly awaited babies amidst travel restrictions and closed borders.

Many foreign nationals who are expecting babies through surrogates in the US have been unable to travel from their home countries in Europe, Asia and Australia due to the travel ban issued by President Trump. A couple from Paris who are expecting their daughter to be born by a Florida-based surrogate in late April were denied boarding in mid-March despite presenting a pre-birth order from an American judge to immigration officials. A Chinese couple expecting their first son have been unable to travel to travel to Oregon where their surrogate will give birth to their child. Some US Immigration officials have concluded that the US travel exemption for parents only applies once a child is born. Despite this, decisions have been made on a case-by-case basis and appear to be up to the discretion of individual immigration officials. With the help of lawyers and surrogacy agencies, some intended parents have successfully entered the US despite the travel ban, but other have not been as lucky.

There also stories of couples who travelled from overseas to be a part of their babies’ birth by their American surrogates, but became stuck in the US after the birth and unable to travel to their home countries. A same-sex couple from the Netherlands who was in the US for their baby’s birth, were unable to travel back home and were stuck with their newborn baby in an Airbnb in Portland, Oregon as US authorities would only issue passports for life-or-death emergencies.
Robin Pope, an Oregon family lawyer and assisted reproduction specialist has said that “There are hundreds of families currently stuck, or about to be stuck, in the US right now because of coronavirus.”

The Canadian Government had also not planned for this situation or considered the surrogacy scenario in its travel restriction exemptions. Global Affairs Canada was not initially informed of the issues intended parents were facing. However, with incredible efforts during the past few weeks from a working group led by Toronto fertility lawyer, Cindy Wasser, intended parents can now come to Canada to enjoy the birth of their babies despite current travel restrictions.
Leia Swanberg, the Founder and CEO of Canadian Fertility Consulting, one of Canada’s largest surrogacy agencies explains once the government was educated on the stories of the intended parents by the working group, they responded with action: “The system is now in place, and we have seen it work – Clients travelling in, and out of Canada with babies. All of this while Passport Canada offices across the country are closed, other than for urgent issues.  We were able to plead on behalf of our clients that these were in fact urgent issues”, said Ms. Swanberg.

Over the next few months, we will likely hear countless stories of couples who not only went through great lengths to realize their dreams of becoming parents, but then overcame unthinkable obstacles to hold their babies during their first moments of life.

If you are considering surrogacy or sperm or egg donation, give the Vancouver fertility lawyers at Crossroads Law a call to set up your free consultation.

The information contained in this blog is not legal advice and should not be construed as legal advice on any subject. The information provided in this blog is for informational purposes only.