The COVID-19 pandemic has created unique circumstances and dilemmas surrounding Assisted Reproductive Technology (“ART”).
On March 17, 2020. The American Society for Reproductive Medicine (“ASRM”) issued guidance for its members to manage patients amid COVID-19. This guidance was created by an expert Task Force made up of physicians, embryologists, and mental health professionals.
The recommendations included:
- A suspension of initiation of new treatment cycles, including ovulation induction, intrauterine inseminations, in vitro fertilization including retrievals and frozen embryo transfers, as well as non-urgent gamete cryopreservation.
- A strong consideration to cancel all embryo transfers, whether frozen or fresh.
- To continue to care for patients who were currently “in-cycle” or who required urgent stimulation and cryopreservation.
- A suspension of elective surgeries and non-urgent diagnostic procedures.
- To minimize in-person interactions and increase utilization of telehealth and telemedicine.
It is important to note that there were exceptions made to those patients who were currently “in-cycle” or who required urgent fertility preservation due to cancer treatment. On May 7th, 2020, these procedures were allowed to resume under strict safety precautions regarding the use of personal protective equipment, limited and spaced appointment times, and social distancing wherever possible. The Assisted Reproduction medical industry now faces unusual restrictions and obstacles when carrying out steps and procedures of Assisted Reproductive Technology.
Before the pandemic, completing the gestational carrier cycle evaluation included:
- The initial intake from an agency, which included having access to complete medical records for a review.
- An in-person meeting with the intended parents and gestational carrier.
- Telephone call and subsequent visit with a nurse practitioner.
- A diagnostic testing in which a mock embryo transfer and mock estrogen cycle was conducted along with a hysterosalpingography.
- A mental health evaluation, involving three components.
- Legal processes.
With COVID-19 restrictions and protocols in place, completing the gestational carrier evaluation during the pandemic looks different and now takes significantly longer:
- The initial intake from an agency, which includes having access to complete medical records for a review. This is done over mail instead of electronically, which inherently slowed down the process.
- There is no longer an in-person meeting with the intended parents and gestational carrier, and a remote, virtual meeting now takes place.
- The next two steps (meeting with nurse practitioner and mock trials) are drastically changed during the pandemic since options for diagnostic testing are limited.
- A mental health evaluation takes place, but is now held over virtual communications and through multiple mental health providers.
- Legal processes are also taking longer because, as we will discuss in greater detail below, contracts need to be changed and added to, and in-person contact is no longer safe. Communication between legal teams and clients is through telecommunication, which inevitably slows down the process.
Clearly, COVID-19 created many concerns within the ART field of practice. Specifically, there are now delays for medical records, a lack of diagnostic testing opportunities and in-cycle monitoring, the psychological evaluation process is diminished, and a lack of in-person contact creates limitations and anxiety. Until the pandemic ends, there will be fewer physical interactions between intentional parents and gestational carriers, and as a response, it is now not uncommon for a gestational carrier to have an ongoing pregnancy with no prior in-person meeting with the intended parents.
Psychologically, these concerns create a significant impact on the gestational carrier process. Intended parents’ stress levels could potentially rise due to increased uncertainty, treatment delays, and travel restrictions. Additionally, there is now a lack of physical interaction between the gestational carrier and intended parents, and questions surrounding whether intended parents are allowed to be in the room during embryo transfers, appointments, and the delivery room creates an enormous amount of stress and insecurity.
The CDC also suggests that there may be in increased risk of severe outcomes in pregnant women with COVID-19 including an elevated risk of ICU and ventilation, however, the overall risk to pregnant women is still low and there has been no increase in the rate of mortality.
In response to these obstacles, ART contracts are now tailored to address concerns surrounding COVID-19. Precautions must be taken in order to optimize health and avoid exposure to COVID-19 and including provisions within the contract to ensure the health and safety of all participants is encouraged. For example, some provisions may include: obligations to wear a mask and other recommended PPE at work and/or in public, personal hygiene (i.e. washing hands), maintaining physical distancing, limiting contact with other individuals as much as practical, avoiding travel, adherence to all State self-quarantine requirements, and working remotely. Consideration to the occupation of the gestational carrier may become necessary as well, especially regarding healthcare workers.
Some studies have shown that health care workers are at in increased risk for COVID-19, especially with inadequate PPE or PPE reusage, inpatient settings and nursing homes, and minority healthcare workers. So, giving consideration to the occupation of your gestational carrier, and even their partner’s occupation, may be an important concern during the pandemic. The goal within a contract should be risk mitigation, and not elimination. There are difficulties to consider surrounding the transfer of embryos to a gestational carrier’s location, and there should be a plan specifically stated to lay out the process if a gestational carrier or family member contracts COVID-19, including a plan for testing and isolation protocols.
Additionally, contracts will not only address COVID-19 conduct and exposures, but also expenses. For example, contracts will address lost wages (furloughs, unemployment, loss of business, etc.), duration of the contract and monthly allowances, the travel expenses for the embryo and gestational carrier, and most importantly, contracts now more than ever address and adjust breach provisions given the highly sensitive climate of the pandemic.
A New Reality
As discussed, COVID-19 has created longer intervals to complete the gestational carrier evaluation and to reach the actual transfer of a successful and healthy embryo. We now have to incorporate telemedicine and physical distancing, along with other precautionary measures. The main goal should be to focus on the strength of professional relationships within this process, including those in the agency recruitment centers, clinical coordinators, reproductive endocrinologists, and attorneys.
COVID-19 has had a major impact on the practice of reproductive medicine, and until the pandemic ends and restrictions are lifted, the entire process continues to adapt and keep the health and safety of all participants at the forefront. Everyone involved continues to be more flexible and increase communications amid the ongoing pandemic. Participating in the practice of reproductive medicine is already stressful, psychologically and economically, and during a pandemic those stresses are heightened. Having a lawyer to help navigate and take on this stress is essential for all parties to experience a smooth, secure, and peaceful transaction.
Assisted Reproduction is a growing industry with new and evolving laws. Having an attorney, especially during COVID-19, is a smart step to ensure a successful and optimal family-building experience. An attorney will assist in helping clients understand what to expect, what steps to take, and how to protect themselves and their goals in the process.
heARTbeat is a publication of KingSpry’s Adoption Law and Assisted Reproductive Technology Law Practice Group. It is meant to be informational and does not constitute legal advice.