24 Nov 2020 U.S. Surrogacy During COVID-19: Update for International Intended Parents

It’s hard to believe it has been eight months since the first time we wrote about the impact of the COVID-19 pandemic on international intended parents planning surrogacy in the United States.

The bad news, of course, is that all of us are still dealing with the pandemic and the many ways in which it has disrupted lives worldwide—even as promising new vaccines appear to be a light at the end of the tunnel.

The good news is that our IFLG team of assisted reproductive technology lawyers and paralegals has learned so much over the past eight months about how to help intended parents navigate and surmount the additional obstacles the pandemic has placed on their paths to parenthood.

For surrogacy agencies, third-party matching services and intended parents planning surrogacy in the U.S., here are six things you should know:

1) International surrogacy continues, 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.

To date, every parent who has applied to travel to the U.S. for surrogacy, at least through our IFLG office, has 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, you must have a valid passport and a visa 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 parts of Europe.

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 we have used successfully applies to parents or guardians of a child under the age of 21 who is a U.S. citizen. If your surrogate has already given birth in the U.S., you are now the parent of a U.S. citizen child.

The other exception to the travel ban we have used with great success 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 you be allowed to travel to the U.S. to be present for the birth of your child so that you 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.

Typically, we begin working with clients 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. It usually takes four to six weeks to gather the documents, and our goal is to submit the file, about six weeks before the birth, to the U.S. Embassy or Consulate closest to the city from which the intended parents will travel.

The file will include copies of passports, ESTAs and visas; the surrogacy contract (if applicable); a pre-birth order establishing the parent-child relationship if it is available; a letter from our law firm; 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 included is 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, as we’ve learned from experience, 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. We don’t want our application to end up in the non-urgent pile; we want to go to the “urgent” pile. So we time our submission carefully to about six weeks before the due date.

The other thing affecting the timing is that the national interest exception is only valid for 30 days from the date it is granted. If we apply too soon and receive the exception within a day or two—and some embassies have been that quick—your window for entry into the U.S. is only good for 30 days. 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 the first surge of the pandemic, many U.S. hospitals began allowing only patients in need of medical care to enter hospitals, prohibiting nearly all visitors, including parents who were having babies born to 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 a newborn passport.

You made it in time, all went well, and now you’re ready to take your baby 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.

This situation has improved significantly since March 2020. In September, the State Department began processing expedited passports again. Pre-pandemic, an expedited passport typically took three to five days; currently, the processing time is about 10 days—much better than the previous 10 to 16 weeks!

To apply for the expedited passport, you must appear in person, by appointment, at one of the U.S. State Department regional passport offices. Appointments are limited. 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 would be to apply to the home country for the child’s home country passport, or to apply for a laissez passer passport, 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, we’re hearing that no nationwide lockdown is planned. I suspect the new administration will re-examine whether there needs to be a travel ban from these specific countries, 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.

We at IFLG are thrilled with our success in helping dozens of intended parents navigate the extra hurdles posed by the COVID-19 pandemic to be at the birth of their babies in the U.S. For more information about traveling for surrogacy during the pandemic, see my recent video chat with Richard Westoby of the San Diego Fertility Center.