ART Update: COVID and international surrogacy update

 From Guest Blogger, Bruce Hale of Modern Family Law 

 

The family law bar is facing a number of challenges posed by the global pandemic.  Much has already been written on the impact of the pandemic to matters of child custody and support.  Lesser known are issues in family formation, which are aggravated when they take place on the international stage.

Many countries around the world restrict or ban certain forms of assisted procreation.  In most countries, surrogacy is banned outright or only available in very limited circumstances.  Gamete donation in many countries can also be subject to strict limitations.  Even fertility procedures, such as IVF, might not be available to all who seek to become parents.

Because of these limitations in other countries, the United States is a destination for people who need fertility treatment or third-party assisted procreation.  In the United States, individuals and couples enjoy a generally broader set of freedoms to pursue the procreative options they might need.  However, the myriad travel bans imposed around the world add a new level of complexity to these projects

When the travel bans to the USA were first implemented by Presidential Proclamation, the immediate problem was how to ensure that intended parents outside the US could come to the US for the birth of their child where the child is carried and delivered by a surrogate.  After much discussion with the US Department of State and various US Embassies around the world, attorneys have largely been able to navigate these situations.  Specifically, the intended parents have often been able to secure a National Interest exemption per provision 2(a)(xi) of the various proclamations.  The theory behind the national interest exemption is that having the intended parents in the US for the birth of their child would relieve the overburdened healthcare system that might otherwise need to provide additional care to the newborn. 

Once here, parents have faced a new challenge : how to obtain travel papers to return to their home country with their newborn.  Specifically, the newborn would need a passport or other authorization to travel, but passport operations were temporarily suspended in the spring and summer.  Unless there was a specific medical situation, passports were generally not able to be expedited.  The most common solution has been to get a specific travel authorization from the parents’ home country.  Fortunately, as the State Department resumes passport operations, this issue is becoming less of a concern.

Beyond the sometimes dramatic situations faced by those involved in surrogacy, fertility treatment generally, and gamete donation specifically, has been a source of great pain to many infertile couples and individuals.  For intended parents coming to the US from a country subject to a travel ban, getting here for the purposes of fertility treatment has not been possible under any of the travel ban exceptions.  Rather, these intended parents have been forced to find and travel to a third country that a) would accept them and b) would not be subject to a ban on entry into the USA.  Risk and cost are added, as the intended parents need to stay in the third country for at least 14 days before attempting entry into the USA. 

Family formation attorneys are keenly aware of the lengths that people sometimes go to in order to achieve their dream of parentage.  This year, we have faced extraordinary challenges.  Like much of our lives in 2020, the global pandemic has further complicated the journey that many people take to build their families.

 

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