06 Oct 2021 End to Travel Bans, Naturalization Reforms Are Good News for International Surrogacy

With the recent lifting of COVID-19-related travel bans, effective in November 2021, as well as long-needed reforms to U.S. naturalization procedures, most intended parents who travel abroad for IVF and surrogacy will find the process of establishing their babies’ U.S. citizenship and bringing them back home a little bit easier.

The Biden administration announced September 20 that it will ease Covid-19 travel restrictions to allow non-citizens who are fully vaccinated to travel to the United States from most other countries, as reported by The New York Times.

Effective in “early November,” non-U.S. citizens entering the United States from another country will be required to show proof they are “fully vaccinated” against COVID-19 as well as proof of negative COVID tests before and after entry, the White House announced.

The action will end an 18-month ban on most travel from scores of countries, implemented by the Trump administration in an effort to slow the spread of the COVID-19 virus—first restricting travel to the U.S. from China in January 2020, then from a wide swath of nations in March 2020. In April 2021, President Joe Biden placed new restrictions on travel from India and reversed plans from the Trump administration to lift European restrictions.

The new eased restrictions will apply to visitors from the U.K., the 26 nations of the European Union, Ireland, China, Iran, Brazil, South Africa and India, according to The Guardian. Under the existing restrictions, only U.S. citizens and immediate families, green card holders and people with national interest exemptions are allowed to travel directly to the United States from one of those countries

COVID-19 Travel Bans Cause Chaos for International Surrogacy

The implementation of the COVID-19 travel bans in spring 2020, mirrored by other countries, instantly threw thousands of lives into chaos, in some cases splitting families or preventing foreign nationals from returning to their homes in the United States. The American Society for Reproductive Medicine (ASRM) reported that nine out of 10 people on earth at the time were living in a country with closed borders.

Among those most impacted were would-be parents who had traveled to another country for in vitro fertilization (IVF) and surrogacy and the surrogates who were, in many cases, already pregnant.

The global community of assisted reproduction professionals sprang into action. As much of the world went into lockdown, ASRM in the United States and the British Fertility Society (BFS) and the Association of Reproductive and Clinical Scientists (ARCS) in the U.K. issued advisories for fertility clinics not to begin any new procedures and to suspend in-progress fertility treatment in most cases where pregnancy had not yet been achieved, as we reported at the time. The interruption was necessary but heartbreaking for thousands whose dreams of parenthood were put indefinitely on hold.

But in hundreds of cases globally, surrogates already were pregnant with babies whose parents had gone abroad for in vitro fertilization and surrogacy.

As international flights were cancelled, intended parents who had planned to attend their babies’ birth in another country had no way to get there — raising the dilemma of who would assume custody and ongoing care of their babies in the interim. In other cases, parents were stranded in foreign countries with their newborns, unable to take them home.

The pandemic created other obstacles for intended parents and surrogates as well. Emergency safety protocols put in place to prevent infection and spread of COVID-19 banned visitors, including birthing partners, in hospital maternity wards. Even if parents were able to travel, in many cases they were not allowed to be present in hospital maternity wards when their babies were born.

The COVID lockdowns also meant that government agencies responsible for issuing birth and travel documents were short staffed or, in some cases, closed. Visas and ESTAs (Electronic System for Travel Authorizations) were systematically cancelled as well.

Almost immediately, our firm, International Fertility Law Group, began receiving calls for help from around the world. Our team of fertility lawyers and paralegals worked tirelessly to help our clients and others navigate the U.S. bureaucracy, gathering documentation to obtain emergency visas, ESTAS and travel authorizations based on U.S national interest and humanitarian grounds, and working with attorneys in parents’ home countries to obtain passports or other emergency travel documents (such as “laissez passer”) for their newborns. Ultimately, we assisted several hundred families from at least 28 countries.

New Rules Require Foreign Visitors to be Fully Vaccinated

With the end of U.S. travel bans in November will come a new set of rules. All non-U.S. citizens traveling to the U.S. by air will be required to show proof they are "fully vaccinated" for COVID-19 before boarding their flights and to show proof of a negative COVID test within three days of arrival, according to The New York Times. No quarantine will be required. There will be exceptions for children too young to be vaccinated. At this time, the new rules do not pertain to travelers via U.S. land borders with Mexico and Canada.

The U.S. CDC also will require airlines to compile contact information from U.S.-bound travelers for contract tracing purposes, The Guardian reports, while U.S. citizens who are not “fully vaccinated” can expect stricter requirements for travel. (Find the definition for “fully vaccinated” in this helpful New York Times Q&A.)

As the easing of pandemic travel bans makes international surrogacy easier and more affordable for many intended parents, other recent Biden administration reforms to immigration and naturalization processes will give babies born abroad using assisted reproduction the same rights to U.S. citizenship as those born abroad via natural conception.

Established in 1952—decades before the birth of the first baby using in vitro fertilization—the U.S. Immigration and Nationality Act (INA) required that, in order to receive U.S. citizenship, a baby born in another country must be genetically related to at least one parent who was a U.S. citizen.

Dated Immigration and Naturalization Rules Discriminated Against LGBTQ Parents

Decades later, with assisted reproductive technology (ART) increasingly effective and popular as a way to create families, that arcane requirement meant if a parent whose genetic material was used to conceive was not a U.S. citizen, the baby would not be a U.S. citizen, even if the parents were legally married.

As we reported earlier, although the rule had adverse impacts for many U.S.-citizen single parents and heterosexual intended parent couples, the rule was applied in a way that more frequently discriminated against same-sex parents, forcing many to undergo lengthy and costly legal battles to establish the U.S. citizenship of their children.

During my time as chair of the American Bar Association’s ART Committee, working with Professor Holly Cooper from UC Davis and the ABA Commission on Immigration, we drafted a resolution, formally adopted by the ABA House of Delegates, urging this and other reforms to the INA. A few weeks later, Donald Trump was elected U.S. President, and our push to implement more humane policies for foreign surrogacy babies and their parents was effectively derailed for the foreseeable future.

Under the newly reformed rules, children born abroad to married parents, at least one of whom is a U.S. citizen—regardless of parents’ gender or sexual orientation—will be U.S. citizens from birth, as long as they have a genetic or gestational tie to at least one of their parents and meet the INA's other requirements

The strategic lifting of pandemic travel restrictions and new, more equitable rules for citizenship demonstrate the positive impact of rational, humane policies on international travel and immigration. Just as these reforms reaffirm the need for equal legal protections for all families and ease the way for intended parents whose babies are born via surrogacy abroad, we are counting on our nation’s leaders to defend the hard-won reproductive freedoms now under attack in conservative statehouses and in our nation’s courts.

For more information about travel and naturalization procedures required for international surrogacy, contact our experienced, multi-lingual team of fertility lawyers and paralegals.