UPDATED: International Surrogacy – COVID -19 Travel Ban

Coronavirus and international surrogacy: Your baby is due to be born overseas and you are affected by the travel ban. What can you do?

The Covid-19 pandemic is affecting every facet of our lives and, unfortunately, shows no sign of abating any time soon. If you are a British Intended Parent (IP) resident in the UK and currently on an international surrogacy journey, we know that you will be extra worried about being able to be with your surrogate and to be there when your baby is born.

The Foreign and Commonwealth Office has now advised against all non-essential travel for the next 30 days. This time period may be extended as the situation unfolds. Furthermore, the countries where you may wish to fly into may also have banned entry to its borders.

So, what do you need to know? We have several trusted partners in the most popular international surrogacy destinations and have the following advice:

USA

President Trump banned entry into the US from the UK and Ireland as of midnight 17 March 2020. It is unknown how long this will last. However, if you are a parent, guardian or sibling traveling for family, entry into the United States may still be permitted, and a quarantine period may apply.

If you have managed to get into the US before the travel ban came into force, then you may need to self-quarantine for 14 days before seeing your surrogate/baby. We have clients with a baby due to a surrogate in Utah in April and before the travel ban was imposed, they changed their plans and travelled to the US a month early’. Obviously, this required a coordinated plan to change annual leave, organise flights and arrange accommodation earlier than expected.

If you were not lucky enough to have made it into the US before the travel ban was imposed, what can you do? If your particular State is a “pre-birth order” State then this will ensure that when your baby is born, the surrogate will not be the legal parent and will have no rights to take custody of the baby. If your surrogate is in a “post-birth order” State, then IPs will need to obtain the parental Order as soon as possible after the baby is born to transfer legal parenthood to the IPs.

If you are unsure which applies to you contact us or your provider for clarity.

With proper planning, you may be able to enter the United States through the exception that you are traveling for a family member who is under the age of 18 years old. However, be aware that it is also possible that the usual ESTA issued under the Visa Waiver Program VWP may be not apply due to travel bans. Your attorneys in both the US and the UK should draft a travel letter for you explaining your situation in the hope that this will assist you with entry into the country. However, it cannot be guaranteed as nobody will know whether there will be any flights let alone if an exit from the UK is possible or entry into the USA permitted. The self-quarantine for 14 days may still be in effect, so please check with your airline.

If neither IP can enter the USA before the birth or has to self-quarantine for 14 days before seeing the baby, who looks after the baby? All IPs should have a plan in place granting powers of attorney and/or designating someone as a temporary guardian of the minor child (or children). This is someone they nominate to take responsibility for the baby until they can take over responsibility themselves. Some US law firms will help IPs put this in place. The IPs would need to nominate a person based in the US to do this and then their lawyer in the US will create legal documents to give custody and decision-making authority to their chosen person in the US.  This person should not be the surrogate unless there is absolutely no other option.

I made it to be with my baby, now what?

Once the IPs are with their baby, IPs will then need to consider their ability to leave the US and travel back into the UK. You can try and travel back to the UK or you can wait it out in the US. If you wish to try and travel back, you will have to first obtain the birth certificate and the passport for your child. This is likely going to take much longer because many governmental offices in the US are closed and the US State Department announced 19 March 2020 that it would, for the time being, not be processing any requests for expedited passports and that the turnaround time is likely to be closer to 6-8 weeks. Please liaise with your US attorney to know the best route to obtain these documents. Check with UK officials and with your airline on any additional papers you may need, any quarantine period, etc. You may also want to liaise with your UK attorneys and/or the UK consulate about the possibility of obtaining a British passport for the child/children as an alternative to waiting 6 – 8 weeks.

Waiting it out in the USA

If you wish to, or are forced to, stay in the US and wait this out, ensure that you have arranged suitable accommodation to hunker down until the travel ban is lifted and to ensure sufficient medical care (and medical cover) is in place for any health needs for yourselves and the baby whilst in the US. Also, if you stay in the US to wait this out, be aware of the possibility of over-staying your travel Visa or ESTA issued under the Visa Waiver Program (VWP). If an emergency prevents a foreign national admitted under the VWP from departing the United States within the period of authorized stay, a period of Satisfactory Departure may be granted not to exceed 30 days – provided that the request is made during the period of admission and the foreign national is still in status at the time of the request. If departure is made within the period of approved Satisfactory Departure, the foreign national is regarded as having made a timely departure without overstaying the allowed time. In emergent circumstances, requests for Satisfactory Departure may be granted if the foreign national is out of status but can prove the intent was to depart timely.

By acting early you can help coordinate who is chosen to act as a guardian, make sure there is a legally binding contract and suitable arrangements, reasonable expenses can be afforded, and you can have a clear plan of action to support all parties involved.

If you took out insurances please do review these now also to see how, if possible, this can assist you.

Our US partners:  Fertility Law Attorney, Molly O’Brien of International Fertility Law Group Inc and Richard Westoby and the San Diego Fertility Centre remain on hand to provide up to the minute advice. They will also be online with us next week when we run our webinar to guide UK IP’s.

Canada 

Canada is in a similar position to the US. As of 16 March 2020, there is a travel ban in place to prevent entry to anyone who is not a Canadian citizen or permanent resident.

An exception to the Canadian travel ban is that immediate family members of Canadian citizens may still enter the country. Some IPs may already have relatives in Canada and can use this exception. However, it is important for IPs to note that under Canadian immigration law, “relative” does not include “parent”. The fact that a surrogate child born in Canada will be entitled to Canadian citizenship, will not mean their intended parents from overseas will be able to use this exception.   We understand that there is a team of Canadian lawyers who are working directly with Transport Canada to provide a list of intended parents of babies who are due between now and July in order to place those intended parents on a list of individuals who will be allowed to travel.

The most important thing any IP can do if they have a surrogate who is already pregnant in Canada is to contact their agency and lawyer in Canada. The changes brought in to combat Covid-19 and to protect public health are unlikely to have contemplated international surrogacy. Lawyers and surrogacy agencies in Canada are best placed to be able to find IPs exceptions to these rules in emergency situations. Our partners have made it clear that they remain open and are well prepared to advise and assist all clients.

The advice from the Canadian government is for all people entering the country to self-quarantine for 14 days. For those who cannot enter Canada in time for the birth or are restricted by self-quarantine, provisions are encouraged to appoint a Guardian which must be made as soon as possible. Again, both Canadian lawyers and agencies have made it clear they are there to assist with this and between the UK and Canada everything can be done remotely.

As in the US, those IPs who are able to get to Canada and to the surrogate’s local area may now face issues returning to the UK or Europe. Again, IPs will need to make provisions for a longer than anticipated stay. This will include insurance, accommodation and ensuring that you instruct your UK solicitor to apply for the UK parental order on your behalf within the set time frames. It may be you also need to consider taking legal advice on your employment rights if you are unable to return to work.

Our Canadian partner, Surrogacy and Fertility lawyer Ellen Embury from Carbert Waite LLP is on hand for anyone who facing any issues or who has a child due in Canada in the coming months. Ellen will also be online with us next week for our webinar guide for UK IPs.

Ukraine

We also have many clients who choose the Ukraine as their surrogacy destination. The situation there is very different to the USA and Canada.

In the Ukraine, the surrogate is not considered the legal parent at birth and the baby will not be an automatic Ukrainian citizen.

We are advised by our Ukrainian partners that the hospitals where the surrogates give birth do not discharge the baby until the IPs arrive and a birth certificate is issued. This is a real potential problem as, if the public registration offices close down (which we are told is likely) birth certificates will not be issued. What then? Unfortunately, we just do not know as things are changing at a very fast pace and provisions are not clear at this point.

We are told that in light of the current situation, concessions will have to be made but this is an ever-evolving situation and we do not yet know what they might be. As soon as we have updates, we will upload them here. As such we strongly advise you to ensure that your UK solicitor and your Ukrainian solicitor have a regular dialogue to protect your position

You should have a candid conversation with the surrogate right now to agree an action plan as quickly as possible, such as appointing a guardian for your new-born baby. It would seem, that in a worst-case scenario, IPs should be making arrangements now for Guardians to care for their baby if they cannot enter the country and to ensure that they have adequate accommodation and insurance once they arrive as their stay in the Ukraine may be longer than originally anticipated.

Update May 2020

It is a travesty as hear so many surrogate born babies in the Ukraine are without their intended parents as a result of the travel ban caused by the coronavirus. We are seeing first hand the impact this is having on worried parents desperate to be with their babies. If the travel ban continues for more months, the number of babies awaiting their parents will increase. We have a client who has twins due in June and we know how worried she is about whether she will be able to enter the country to be there for the birth.

In the Ukraine, surrogate babies are born stateless as they do not acquire Ukrainian citizenship and the surrogate mother has no legal rights to the child. Once born, if the intended parents cannot be there to take care of them, guardians must be appointed.

In our opinion the relevant embassies and the UK Home Office should be petitioned to assist in helping intended parents enter the Ukraine and thereafter issue the relevant emergency travel documents to help intended parents come home with their babies. It is vital that the media highlights this problem to assert pressure on the relevant authorities to assist.

With travel restrictions in Ukraine set to be in place for the next 3 months, it will become increasingly difficult for intended parents to take custody of their child. It is possible to have embassies petition to let you into the country at this time. This may be a difficult and slow process to achieve. It is, however, a possibility that must remain open until the Ukrainian government pass specific legislation to allow for intended parents to collect their child.

UK Parental Orders

If you are in the middle of your surrogacy journey, we are able to make the UK parental application, on your behalf, regardless of whether you are abroad or here and regardless of whether your baby is overseas or in the UK. We are here to protect your position and acquire legal responsibility on your behalf. However, we should be having a regular dialogue with your clinic and lawyer overseas to likewise protect your position and help with arrangements upon the birth of your child. Be prepared and get organised as quickly as possible and hopefully we can support you address everything calmly and swiftly

If you are only juts now starting your journey and would like to hear from our partners we are going to be hosting a series of webinars over the coming weeks and offering 1-2-1 clinics with a UK fertility lawyer and our partners for you to receive comprehensive advice. These will be advertised on our events page this week  [ACLF Events]

What should you do next?

Book your complimentary 1-2-1 video clinic through enquiries@acitylawfirm.com

We would like to thank our partners for their support and contributions to this article:

They can also be contacted for direct advice