1) International surrogacies continue, even during the COVID-19 pandemic.
First of all, don’t panic. Surrogacy, particularly surrogacy in another country, already involves an extraordinary amount of time, effort and planning. Intended parents are experts at it.
Even in the middle of a global pandemic, successful international surrogacies are still occurring.
Most if not all intended parents from overseas have been able to get here for the birth of their children, and some have been able to travel for reproductive medical procedures in the U.S. as well.
2) Travel ban exceptions are available for intended parents.
As always, in order to travel to the U.S. from another country, your clients must have a valid passport and a Visa, EVUS registration (Electronic Visa Update System) or ESTA (Electronic System for Travel Authorization) or be traveling from a VISA waiver country.
However, during the COVID-19 pandemic, the U.S. has implemented travel bans from several countries where cases have spiked, including China, U.K., Northern Ireland, Brazil, Iran and most of Europe (specifically the Schengen countries).
The presidential proclamations prohibit travel to the U.S. if the traveler has been physically present in one of those countries in the 14 days prior. So, for intended parents who reside in one of those countries, one way around the ban is to travel to a country where U.S. travel is not prohibited, shelter there for 14 days, then continue on to the U.S.
Those who don’t have the luxury of a 14-day side-trip and who must travel from a country under U.S. travel ban can still be granted an exception to the ban.
One exception used successfully applies to parents or guardians of a child under the age of 21 who is a U.S. citizen. If an international intended parent’s surrogate has already given birth in the U.S., they are the parent of a U.S. citizen child and are allowed to travel. This exception also applies if intended parents going through surrogacy during the pandemic have had another child in the U.S. through a prior surrogacy.
One other commonly utilized exception to the travel ban is what’s called a “national interest exception.” The basis of this exception is that it is in the national interest of the United States that the intended parent(s) be allowed to travel to the U.S. to be present for the birth of the child so that they can make medical decisions for the child and take the child from the hospital as soon possible… preserving U.S. healthcare personnel and resources for medical emergencies, including the ongoing emergency of the pandemic.
3) Prepare parentage and surrogacy documentation for travel ban exception.
Clients should begin working on these travel issues about three months before the due date to prepare a file of documents to support a petition to the U.S. Embassy or Consulate for an exception to the travel ban. Allow four to six weeks to gather the documents and submit the file about 6 weeks before the birth, to the U.S. Embassy or Consulate closest to the city from which the intended parent(s) will travel.
The file should include copies of passports, ESTAs, EVUS (if applicable) and Visas; the surrogacy contract (if applicable); a pre-birth order establishing the parent-child relationship if it is available; and a letter from a medical professional (in most cases the IVF doctor) explaining the national interest exception and why the applicants should be allowed to enter the U.S.
Also include a signed COVID-19 statement attesting to the intended travelers’ health status, including whether they’ve ever had COVID-19, have it currently or have been treated for it in the past and what their isolation and quarantine plans are upon arrival in the U.S.
The timing of the application for exception is critical, for two reasons.
First, currently embassies and consulates all over the world are overwhelmed with travel requests and exceptions to travel bans that have impacted individuals in all kinds of situations. Because of the surge of petitions, requests that are not considered to be an emergency go into a “non-urgent” pile. Furthermore, the national interest exception is only valid for 30 days from the date it is granted. So, it is important to schedule carefully around the time you plan to arrive for your baby’s birth.
4) The pandemic has impacted hospital birth and delivery visitor policies.
During various surges of the pandemic, many U.S. hospitals have been forced to allow only patients in need of medical care to enter hospitals, prohibiting nearly all other visitors, including parents having babies born via surrogates.
Over the course of the pandemic, each hospital has modified its own policies, which are subject to additional restrictions when infections spike locally.
The best way for intended parents to prepare for this uncertainty is to check hospital labor and delivery department policies very close to their travel departure time, and be prepared for the possibility they may not be allowed in the delivery room or in the hospital, depending on how things are going with the pandemic.
5) It takes longer to get birth certificates and a newborn passport.
For those overcoming the above obstacles, especially those who need to fly internationally to return home with their baby, there are additional obstacles and delays to consider.
Throughout the pandemic, vital records offices have been impacted in their ability to issue expedited birth certificates for international intended parents whose children were born in the U.S. (For domestic intended parents, there is no particular rush for the birth certificate, and these can be mailed to the parents when available.)
International intended parents also need a US passport (or other valid travel document) for the child to travel home. When the pandemic first broke out, the U.S. State Department essentially closed all its passport offices. The only way to apply was by mail, and with an existing backlog, getting a passport could take as long as 16 weeks. Expedited passports were not available at all except in case of life-or-death medical emergency. For many international intended parents, their home countries came to the rescue - either issuing home country passports or emergency travel documents (e.g., a laissez passer) good for the flight home.
However, the US Passport situation has improved significantly since March 2020. In September, the State Department began processing expedited passports again. Pre-pandemic, an expedited passport typically took anywhere from one to five days; currently, the processing time is about 10 days. Expedited service may return to the one to five day turnaround once all State Department passport offices return to full service.
To apply for a newborn’s expedited passport, the newborn and parents must appear in person, by appointment, at one of the U.S. State Department regional passport offices. Appointments are limited but are generally granted within ten days. Intended parents can call or apply online for an appointment or use a passport and visa expediter service.
Should the U.S. State Department shut down passport processing again, alternatives to the U.S. passport would be to apply to the home country for the child’s home country passport, or to apply for a laissez passer , a one-time emergency document that will allow the baby to make one trip (only to the home country), even without a passport.
6) Travel bans continue in effect even after President-elect Biden takes office.
Taking office in the middle of a global pandemic and economic crisis, President Biden may be focused on other issues initially. So far, it appears (as of the date of this writing) that no nationwide lockdown is planned. We suspect the new administration will re-examine whether there needs to be a travel ban from the specific countries listed in the travel ban, in response to a pandemic that is global. Our best guess is there will be a slow rollout of new passport and visa procedures. But in the meantime, the presidential proclamations instituting the travel bans remain in effect.
Plan, Prepare, Overcome
In conclusion, while there may be light at the end of the tunnel with the COVID vaccines being deployed, most likely for the majority of 2021, COVID will continue to present additional obstacles for those parents planning their assisted reproduction family building journey or for those who are in the middle of their journey. For those attorneys assisting them, overcoming the obstacles created by COVID is possible…with proper planning and preparation starting with the six pointers outlined above.
