The subject line on the email, sent Feb. 3, was innocuous enough: “My possible delayed arrival in Seattle.” But what was inside would be life-changing, for both the sender and recipient.
Eight months earlier, Sierra Martin, a 23-year-old woman from Washington state, had agreed to be a surrogate for a gay man in China. Martin had always wanted to be a surrogate, and had even applied to be one before she was legally old enough to do so. (“I just don’t mind being pregnant,” she said in an interview.) She was thrilled when she came of age around the same time Washington passed a law allowing for compensated surrogacy.
The intended father, a 50-year-old medical researcher who we are calling Li, had been thinking of hiring a surrogate for years. He desperately wanted a child, but adoption in China is restricted to heterosexual couples. And since surrogacy is illegal there, he had to look abroad. It took five years of research—and one failed surrogacy attempt—before he found Martin. When the embryo implantation worked on the first try, he was overjoyed.
Then the coronavirus hit. Shortly after the new year, China reported its first death from the virus. Within a month, it would have over 200 cases.
On Jan. 31—a month before Li’s baby was due—President Donald Trump issued an executive order prohibiting almost everyone from China from entering the U.S.
That was why, four days later, Li was writing his anxious email to Martin.
“The U.S. just barred entry to the country for all foreigners arriving from China due to the coronavirus epidemic,” he wrote. “I’m not sure if I can go to Seattle on the 25th this month.”
“If I cannot,” he added, “can you please take care of my baby?”
Surrogacy is booming around the world, thanks to improvements in reproductive technology, advances in gay marriage rights, and couples delaying pregnancy until later in life. The most common method—popularized by celebrities like Kim Kardashian and Tyra Banks—is gestational surrogacy, in which the embryo is created through in vitro fertilization. A leading market research firm recently estimated the industry was worth $112.8 million in 2015, and could hit $201.4 million by 2025.
Because of its relatively robust health-care system and permissive laws, the U.S. has quietly emerged as a leader in this market. Forty-seven states allow for paid surrogacy, making them attractive destinations for prospective parents from countries like China, Israel, and Australia, where the practice is illegal. The same industry analysis found that North America had the largest surrogacy market in 2015, accounting for nearly half of the global total.
But the coronavirus pandemic—and the travel bans and canceled flights that accompanied it—has completely upended this industry, leaving babies stranded without anyone to pick them up. In May, video of 46 unclaimed babies sitting in a hotel in Ukraine ignited fury and headlines across the world. But the problem is not limited to foreign countries.
There are no statistics on how many babies are stranded in the United States. But experts who spoke with The Daily Beast estimated that hundreds of babies have been born in the U.S. without their intended parents present since the pandemic started. Five of the seven agencies and attorneys consulted by The Daily Beast had at least one client who had not yet picked up their newborn, and some had several.
“Every day I’m spending two to three hours trying to get anxious clients to be calm, trying to get them to understand that I don’t have a good answer,” said Robin Pope, a surrogacy attorney in Oregon who is helping Li with his case. “Lawyers tend to be problem-solvers, and right now we can’t solve this problem, any of us. And that’s very frustrating.”
The first quandary international parents encounter is getting to the U.S.. When Li emailed Martin about his delayed arrival, he copied Pope, who had been helping him with all the legal wrangling that surrogacy entails. Pope alerted him to a provision in the travel ban that allowed entry for parents of U.S. citizens—which, after the birth of his baby, Li would be. In recent months, a number of countries have allowed parents to travel under this provision using something called a pre-birth parentage judgement, which declares that the intended parents are the baby’s legal guardian. Other countries, however, require a physical copy of the birth certificate to prove parentage, meaning the parents cannot travel to the U.S. before the birth.
Even before the pandemic, getting a birth certificate is a two- to three-day process. Amid the current crisis, with agencies running on skeleton crews, getting the document can take over a week. Pope said she usually sends her requests for birth certificates by courier to expedite the process. Now, because couriers cannot enter offices, she has to send them by mail, extending the process by several days on either end. Margaret Swain, a director at the Academy of Adoption and Assisted Reproduction Attorneys, said it took one client a week and a half to get her baby’s birth certificate, because the person in charge of issuing it was not allowed into the office.
Even with a birth certificate or court order, there is the problem of getting a flight. By mid-April, approximately half of the planes in the U.S. were grounded due to the pandemic.. In March, American Airlines announced it was flying just 10 to 20 percent of its international flights; United cut its international schedule by 95 percent. Multiple surrogacy attorneys and agencies told The Daily Beast their clients had resorted to hopping between different countries, hoping to find less stringent travel restrictions or more flights to the U.S.
Melissa Brisman, the founder of surrogacy agency Reproductive Possibilities, said one of her intended mothers was trapped in Ghana when the country sealed its borders and cancelled most of its flights. The woman was forced to travel to Morocco, hire a lawyer, and negotiate a seat on a private plane leaving for the United States. It took her more than six weeks to be united with her baby, and Brisman said she called, crying, every day.
In China, Li knew of several people who had left the country to fly to the U.S.; in fact, he said two of his friends had picked up their baby this way. But this method required quarantining for two weeks after arriving in the new country, and another two weeks after reaching the U.S. Li didn’t have enough vacation time for that. He’d also spent most of his savings on the surrogacy process and didn’t know if he could afford the newly increased cost of an international flight—much less two. He decided to wait until the birth certificate arrived, and do things the proper way.
But by March 2, when Li’s baby’s birth certificate was issued, he was already on the heels of an even bigger problem. Babies born in the U.S.—whether or not they are born to international parents—are considered American citizens and thus need a U.S. passport to travel. Getting an expedited passport for a newborn is usually a single-day process, if you’re willing to pay a little extra and go in person. But on March 20, the U.S. passport office ceased offering not only expedited passport applications, but any at all, except in the case of a life-or-death emergency.
With a birth certificate in hand, Li might have been able to get into the U.S. But without a passport for the baby, he would not be able to get out.
The passport issue, more than anything else, has enraged surrogacy agencies and attorneys. Having uninsured, unclaimed babies in the U.S. in the middle of a global pandemic is not only a stress on their parents, they argue, but a stress on the U.S. government. If no one comes to retrieve the baby, who will take care of it? If the baby gets sick, who will pay for its care? The answer to these problems, advocates say, is to simply include surrogate babies in the life-or-death exception. But so far, the State Department hasn’t listened.
On March 30, 10 days after the pause on passports began, the Academy of Adoption and Assisted Reproduction Attorneys wrote to the State Department, asking it to ease the restrictions for babies born through gestational surrogacy. They received no response. A month later, the American Society for Reproductive Medicine issued a similar letter pleading for assistance.
“We recognize that these are unprecedented times that call for extreme measures to protect citizens’ health and safety,” they wrote. “That said, we urge you to act to mitigate the unintended consequences of recent travel restrictions on intended parents whose plans and dreams are indefinitely on hold in the age of COVID-19. These families deserve solutions.”
Pope, meanwhile, was attempting to lobby the department through Oregon Sen. Ron Wyden’s office. For nearly two months, she said, she corresponded with someone in the office who told her she was working on the issue but making no headway. Eventually, Pope gave up waiting for a response.
Wyden’s office confirmed that it has reached out to the State Department on behalf of Pope’s clients on three occasions. Each time, the department refused to classify the passport applications as emergencies.
“I have to be honest, I’m annoyed, frustrated and a little angry that the State Department can’t simply adopt a fix for this and let these babies get passports,” Pope said.
“It’s like seriously… do you just not care? What does it take to make you care?” she added. “These are human beings.”
In a statement to The Daily Beast, a State Department spokesperson advised anyone in this situation to reach out to the nearest U.S. embassy or consulate for assistance.
“We recognize that this is a very challenging time for U.S. 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 spokesperson said. “...We review each of these situations on a case by case basis and ask that intending parents reach out to their nearest embassy or consulate to determine whether they qualify for an exception to the proclamation.”
Some countries, such as France, Israel, and Britain, have created a workaround, issuing temporary travel documents to newborns so their parents can bring them home from the U.S. China, however, has implemented no such standardized solution. Instead, faced with the possibility that he would be unable to enter the U.S. for months, Li had to sign over power of attorney to Martin, and let the woman who has carried his baby for nine months care for the infant for the foreseeable future.
The choice wasn’t easy for Martin, either. A single mother who works two jobs, she had her own children—ages 3 and 5—to think about. And she was worried about bonding too much with a baby she knew she’d eventually have to give away—a well-known issue for surrogate mothers, and one of the reasons that most intended parents require them to sign strict contracts.
“I literally drilled myself: ‘I’m not bringing home a baby, I’m not bringing home a baby, I’m not bringing home a baby,’” said Martin, who previously spoke to the Guardian about the dilemma. “And then, a week before I’m due, it’s: ‘Can you take care of my baby?’”
Martin eventually agreed to take custody of the baby, whom she calls by his middle name, Steven. She said he is an agreeable infant who sleeps through the night, and her children have accepted that he will not be their brother forever.
But the same situation has replicated itself across the country, and often without easy answers. (The Chicago Tribune recently reported on another Chinese couple in a similar predicament.) In some cases, agency employees or past surrogates have agreed to take custody of the children until their parents arrive. (Martin said she agreed to take the baby, in part, because the woman running her surrogacy agency was already taking care of multiple infants who were stranded in the U.S.) While no hotel lobbies have been transformed into nurseries as in Ukraine, at least one of Brisman’s clients had to call in a charity to take care of her child.
And experts say these more informal arrangements are still fraught with legal liability. If the baby gets sick, who will pay for it? If it gets injured, or kidnapped, who is at fault?
“If something goes wrong, even if the caregiver is blameless, they’re going to get blamed,” said Nidhi Desai, a deputy director at Academy of Adoption and Assisted Reproduction Attorneys.
Meanwhile, the intended parents are left waiting, with no idea when they will be able to meet their children. Li says his family and his partner keep asking when he will be able to bring the baby home. Sometimes, when he can't sleep at night, he lies in bed and looks at the photos and videos Martin has sent him over WeChat.
As a medical researcher, Li understands the value of the travel ban in controlling the pandemic. But he said he thinks there should be exceptions for people in special circumstances like his.
“They can close the door, but they need to open the window for some people in some circumstances,” he said. “The U.S. government should allow us to go to the U.S. to see my baby and take my baby back to China.”
Last month, the U.S. passport office reopened to new applications and started working through the 1.7 million-person backlog that has piled up since March. On its website, the State Department encourages people not to apply right now, warning that “delays will continue,” and says expedited applications will still be issued on an emergency basis only.
Still, Li sent Martin all the necessary materials to apply for his baby’s passport without him, in hopes of making some headway while he is stuck in China. When she called the passport office, an employee told Martin the wait could be several months. Pope is advising her clients to expect closer to six.
In the meantime, Li is having video visits with the baby weekly, and getting frequent updates from Martin. Asked what he would do first when he met his baby, Li said he would introduce him to his partner and his family. Then he stopped and corrected himself.
“Immediately, the first thing, I will kiss him,” he said.