Navigating Citizenship and Visa Issues when pursuing Surrogacy in the United States

Surrogacy in the United States offers international intended parents a clear path to building their family, but it also comes with unique citizenship and visa considerations. From securing the right visa for your stay to ensuring your child’s citizenship is properly recognized both in the U.S. and your home country, the process can be complex.

At Klein Fertility Law, our team helps guide families through these critical steps, working alongside you to anticipate challenges and protect your parental rights every step of the way.

Disclaimer: This content is for informational purposes only and does not constitute legal advice. Klein Fertility Law provides guidance tailored to your unique circumstances, and you should always consult with qualified legal counsel in both the United States and your home country.

Understanding the Legal Landscape

Surrogacy laws in the United States vary state-by-state with their own legal framework. Some states are considered surrogacy-friendly, offering clear paths for international intended parents to establish legal parentage, while others have restrictions or do not recognize surrogacy agreements at all.

An experienced surrogacy attorney will guide you to work in an appropriate jurisdiction, draft and validate surrogacy agreements, and ensure legal compliance. Pre-birth and post-birth orders are especially important, as they establish parental rights before or after the child is born. These court orders provide the legal foundation for recognition of parentage both in the United States and abroad.

Citizenship Issues and Considerations in Surrogacy

A child born in the United States receives U.S. citizenship automatically under the Fourteenth Amendment. This includes children born through gestational surrogacy arrangements, as long as the birth occurs within the United States. Parents will receive a state issued birth certificate, which becomes a key document for securing other legal records.

International intended parents also need to plan for the process of registering the birth in their home country. This may require:

• Filing additional paperwork with their country’s consulate or embassy.
• Providing DNA testing to prove a genetic link.
• Navigating dual citizenship or nationality laws.
• Undergoing court proceedings in their home country.

Because every country’s legal system differs, challenges may arise. Your surrogacy attorney can coordinate with international counsel to streamline the process and avoid delays in bringing your child home.

Visa Issues and Considerations in Surrogacy

International intended parents must plan for travel to the United States during the surrogacy journey. Visa options can include:

• B-2 Visitor Visa: Commonly used for travel related to surrogacy, medical procedures, and attending the birth.
• Visa Waiver Program (ESTA): Available for citizens of certain countries but with strict time limits.

Key considerations include:

• Preparing documentation for visa applications.
• Planning for timelines and potential delays in processing.
• Applying for extensions or renewals to remain in the United States through the birth and immediate post-birth period.

Post-Birth Legal Processes

After your child’s birth, international intended parents must complete important steps before traveling back home:

• Parental rights: Established through pre-birth or post-birth orders, depending on the state where your child was born.
• Travel documents: Intended Parents may secure a U.S. passport for their child and, in some cases, additional exit documents from their home country’s embassy.
• Citizenship filings abroad: Working with an attorney in your home country to ensure all necessary paperwork is in order to recognize your child’s nationality and parentage in your home country.

Having these processes in order before birth avoids stressful delays during an already emotional time.

Common Citizenship and Visa Issues in Surrogacy

If you are not working with an experienced legal team in the United States and from your home country, you could face some challenges:

• Delays in visa processing or extensions, requiring proactive planning.
• Dual citizenship conflicts, where one country does not automatically recognize the child’s US citizenship.
• Legal conflicts between U.S. court orders and foreign legal systems, which may require additional documentation or recognition proceedings.

These potential issues highlight the importance of working with dedicated legal teams from the U.S. and your home country.

Surrogacy Citizenship and Visa Issues FAQ

 What are the key citizenship issues I need to be aware of as an international intended parent pursuing surrogacy in the United States?

Children born in the U.S. receive U.S. citizenship, but your home country may have additional requirements for recognition. You should plan for both U.S. and foreign legal processes.

 How does my child obtain US citizenship if they are born via surrogacy in the US?

As a result of being born in the United States, the child receives U.S. citizenship.

 What types of visas are available for international intended parents during the surrogacy process?

Most intended parents use a B-2 visitor visa or the Visa Waiver Program (ESTA) if eligible. The choice depends on your country of citizenship and the expected length of your stay.

 How long can I stay in the United States during the surrogacy and birth process?

Visa validity varies. B-2 visas generally allow up to six months, with possible extensions. ESTA permits a 90-day stay. Always apply early and plan for potential delays.

 What documentation do I need to apply for a visa to travel to the United States for surrogacy?

You may need proof of medical appointments, surrogacy agreements, financial means, and ties to your home country. Requirements vary by embassy or consulate.