Guest post by Falletta & Klein
Since 1983, the law partnership of Falletta & Klein has been servicing California with expert experience in the areas of Surrogacy Law, Egg Donor Law, Family Law, and more.
The outbreak of the COVID-19 pandemic has caused global travel restrictions starting from late January 2020. This has largely affected the international Intended Parents’ travel plans to the United States for the births of their babies via surrogacy, especially for those whose babies are expected to be born in the coming months. To deal with the international travel bans, Falletta & Klein has several pieces of travel advice for the international Intended Parents.
Plan well before travel
Despite the tightened travel bans issued by the United States, the Section 2 (a) (iii) of the Presidential proclamation issued on March 14, 2020 exempted from the travel ban any parent of a U.S. citizen child who is under the age of 21 and unmarried. This would apply to Intended Parents who have been legally declared the parents of the child carried by their gestational carrier because the child will be a U.S. citizen upon birth. Nevertheless, based on Falletta & Klein’s experience during the COVID-19 pandemic so far, the issuance of a “national interest travel exemption” to the international Intended Parents by their local embassy/consulate is on a case-by-case basis, particularly the timing of when such travel approval is issued. As such, it is essential for the Intended Parents to plan well ahead of time, preferably 2 to 3 months in advance of their child’s due date. We advise our clients to prepare the following documents in addition to the regular documents required for the visa/ESTA to the United States:
Pre-birth Judgment Establishing Parent-Child Relationship or other relevant documents to prove your connection to the child;
Copies of your Gestational Surrogacy Contract (signed by Intended Parents and Gestational Carrier);
A letter from your attorney explaining that you are the intended and legal parent of the child carried by your gestational carrier;
A letter from your IVF doctor verifying that you are the intended parent(s) and stating that the doctor has been assisting you during the surrogacy process;
Proof of your intended travel plans and quarantine plans (upon arrival in the U.S., you will need to quarantine for 14 days).
For Intended Parents who are not able to get their visas to the United States
As the issuance of the “national interest travel exemption” is completely decided by your local embassy/consulate and the U.S. State Department, it is not guaranteed that you will be issued permission to enter the United States before the birth of your child, even if you have prepared all the documents mentioned above.
What happens if you are not approved to travel to the U.S. in advance of your child’s birth?
In our recent experience with clients during COVID-19, if you are not approved to travel to the U.S. before the birth of your child, you will be permitted to travel to the U.S. once your child’s birth certificate is prepared. In California, this takes approximately three (3) weeks after birth.
While you wait for your child’s birth certificates, you must authorize a temporary guardian(s) to take custody of your child and care for your child on your behalf. You will need to consult your surrogacy attorney to sign a Power of Attorney (POA) so that the appointed guardian(s) will be able to make healthcare decisions for your child, take custody of the child upon discharge from the hospital and take care of the birth certificate and passport paperwork for the child in the parent’s absence.
Please remember that the travel restrictions in the United States have been changing on a frequent basis throughout the development of the COVID-19 pandemic. Be sure to consult a local attorney in the state where your surrogate will deliver your baby for any specific needs under the laws of that state.