Legal Solutions to Enter the United States for the Birth of Your Child

California provides an ideal legal arena for people around the world who want to build their families through surrogacy. International intended parents can form contracts with surrogates and remain in their home countries during the pregnancy and later arrive for the birth of the child with the peace of mind that California law fully recognizes their parental rights.

This year, governments around the world have responded to the Covid-19 pandemic by restricting international travel into their borders. A January 31, 2020 Executive Order issued by the U.S. government suspends entry of persons who were physically present in the People’s Republic of China for 14 days before traveling into the United States.

Being unable to travel into the U.S. poses two problems for intended parents. First, for entering the U.S. to begin In Vitro Fertilization. Second, for entering the U.S. for the birth of a child. The Executive Order can effectively halt plans to start families and even separate families who have already begun the surrogacy journey.

The Law Offices of Robert Rettenmaier, PC is committed to its mission of helping people bring children into their lives no matter the legal difficulties that should arise. We have responded to these challenging times by assisting our clients through the travel process and completing their surrogacy journey.  

Suspended Entry from China into the United States

On January 31, 2020, President Donald J. Trump issued the “Proclamation on Suspension of Entry as Immigrants and Nonimmigrants of Persons who Pose a Risk of Transmitting 2019 Novel Coronavirus” (also known as the Executive Order).

Citing authority vested by the United States Constitution and immigration statutes, Section 1 of the Executive Order suspends entry, as immigrants or nonimmigrants, all persons who were physically present in the People’s Republic of China 14 days before entry or attempted entry into the U.S.

However, the Executive Order comes with several exceptions and one is relevant to intended parents of children born in California through surrogacy. Section 2(a)(iii) of the Executive Order states the suspended entry does not apply to any person who is the parent of a U.S. citizen, provided the U.S. citizen is unmarried and under the age of 21.

Section 1 of the Fourteenth Amendment to the U.S. Constitution establishes that all persons born in the U.S. are U.S. citizens. A child born through surrogacy in California is a U.S. citizen. A valid parentage Order from a state Superior Court establishes an intended parent’s parentage rights over a child born through surrogacy. Therefore, an intended parent from the People’s Republic of China shall not be restricted by the Executive Order as specified by the exception laid out in Section 2(a)(iii).

The surrogacy journey can bring international intended parents into the U.S. for different reasons. One is when the intended parents being In Vitro Fertilization, either one or both intended parents will travel to provide genetic material for the creation of the embryo. And another is when the intended parents arrive before or after the birth of their child. Each present different challenges and methods for entry into the U.S.

Entering the United States to Provide Genetic Material

Entering the U.S. to provide genetic material for the In Vitro Fertilization process can be especially challenging. Because this travel occurs before the birth of a child who is deemed a citizen of the U.S., the relevant exception to the Executive Order does not apply. However, there are solutions that can enable people to begin the surrogacy journey.

First, intended parents from the People’s Republic of China have the option to travel to a country that is not under travel restrictions from the U.S. and quarantine for 14 days before applying for entry.

Alternatively, intended parents from the People’s Republic of China may provide genetic material at a clinic outside of the U.S. and avoid entry all together. The embryo may then be shipped to a facility for embryo transfer in California. California law does not require an embryo to be created in the state. But to obtain California jurisdiction over your agreement, the transfer of the embryo to the surrogate’s uterus must be performed in California.

The Law Offices of Robert Rettenmaier, PC can accommodate these difficulties and can recommend doctors or clinics to assist you, so do not hesitate to contact us.

Entering the United States to Meet Your Child

Traveling to see your child for the first time means so much to intended parents. As attorneys, we have continued to assist our clients in this part of their journey. From our experience working under current travel restrictions, we have successfully assisted intended parents enter the U.S. However, the solutions we can advise international intended parents are different depending on whether they choose to enter the U.S. after the birth of their child or before the birth.

Arriving After the Birth of Your Child

When entering the U.S. as the intended parent of a U.S. citizen, you need the best evidence to support your parentage. The birth certificate of your already-born child is the best evidence. Birth in California establishes your child’s U.S. citizenship. A pre-birth or post-birth parentage Order by a state Superior Court establishes your parentage rights on the birth certificate. Therefore, the best evidence to support your legal entry into the U.S. will come after the birth of your child. At that time, you will have a birth certificate which names you as the parent of a U.S. citizen and exempt you from the travel restrictions under the Executive Order.

Unfortunately, the pandemic has also affected how quickly birth certificates are produced. In our experience, the delay could last for as long as a month. How your child will be cared for during this period is an important matter, but The Law Offices of Robert Rettenmaier, PC can help.

Your surrogacy agency can arrange for specific childcare after birth. Our attorneys can then provide your caregiver with Limited Power of Attorney and a contract for compensation until you arrive in the U.S.

Surrogacy law is new and very complicated. To make your entry easier, The Law Offices of Robert Rettenmaier, PC will prepare an Attorney Letter for the purpose of expediting either (1) your application for a U.S visa if you do not have a visa, or (2) your legal entry into the U.S. if you already have a visa. Our Attorney Letters will clearly establish your qualifications to enter the U.S. that comply with the terms of the Executive Order.

Arriving Before the Birth of Your Child

It is possible for you to enter the U.S. before the birth of your child. The Executive Order prohibits entry of all persons who have been physically present in the People’s Republic of Child 14 days before entry or attempted entry into the U.S. You therefore have the option to quarantine for 14 days in a country without travel restrictions with the U.S. and then enter the country.

The Law Offices of Robert Rettenmaier, PC can then help support your entry into the U.S. with an Attorney Letter explaining your rights and the urgency of your entry in anticipation of the birth of your child.

Our Mission to Help Grow Families Continues

Surrogacy means more than the cooperating with assisted reproductive medical procedures and executing legal documents that establish your parentage rights. It also means finally being present as a parent during a beautiful time when your child is new to this world. This is a fleeting time and you deserve to enjoy every moment of it.

The Law Offices of Robert Rettenmaier, PC is dedicated not only to your rights as parties to a surrogacy contract, but also to your experience as parents. We will advise you of your best options to see your child and will fully support that process with all legal remedies available. The Covid-19 pandemic presents real challenges for people around the world. However, life continues, and it continues most beautifully with the birth of a child.