Imagine you are a female U.S. Citizen living abroad with your foreign-born spouse. You use assisted reproductive technology (ART), such as In Vitro Fertilization (IVF) to have a baby together using a donor egg. You apply for U.S. Citizenship for your child and are told that, although you gave birth to the child, it is not "yours" under the definition of "born of" you under the Immigration and Nationality Act ( INA), and because you do not share any genetic link to your child, you may not sponsor the child for U.S. Citizenship as its birth mother. What if the particular type of ART used by you and your spouse meant that the child did not share any genetic link to either of you? When INA was drafted in 1952, it never contemplated a world in which a woman could give birth to a child that was not genetically her own. Over the years, the DOS has refined its definition of the meaning of "born of" to require a genetic link to prove parenthood, leaving families who have availed themselves of reproductive technology not contemplated by immigration laws in a citizenship-limbo. Fortunately, as Maggio+Kattar Senior Counsel and Consular Practice expert Steve Pattison explains, the DOS has finally expanded its interpretation of the phrase "born of" to make room for modern science
The Department Of State has a new policy concerning the citizenship status of children born abroad to U.S. parents through Assisted Reproductive Technology (ART). Under section 301 and 309 of the Immigration and Nationality Act, a child born outside the U.S. must have a biological connection to a U.S. citizen parent in order for the parent to convey U.S. citizenship at birth to the child. In practical terms, this means that the child must have the genetic material of at least one U.S. citizen, either father or mother, in order to have a claim to citizenship at birth.
Rapid increases in the use of ART by U.S. parents residing outside the United States have given rise to a growing number of citizenship cases involving children conceived through ART. In some instances, where the birth mother was a U.S. citizen but the child she was carrying did not have her genetic material, it was not possible to register the child as a U.S. citizen at birth because it had no biological connection to her. Even though the U.S. citizen birth mother may have been legally recognized and documented as the child’s parent under local law, unless the birth father was also a U.S. citizen, the child would not be able to obtain U.S. citizenship, nor would he or she necessarily be considered a citizen of the country where he or she was born.
To address this situation, the Department of State has issued new policy guidelines for consular officers to use in adjudicating citizenship claims for children born abroad to a U.S. citizen. Under the new interpretation, U.S. citizen gestational mothers who are also the legal parent of the child at the time and place of its birth will have the same right to apply for a U.S. passport on behalf of their child as would a U.S. citizen mother who is genetically linked to a child. The Department of State and the Department of Homeland Security will now interpret relevant U.S. law to include in the definition of “child” children born of either a genetic or gestational parent who is also a legal parent at the time of the child’s birth.
Under the new interpretation, a child born of a gestational U.S. citizen mother who is legally married will be held to have been born in wedlock whether or not her spouse is the child’s genetic parent. The new interpretations treats identically children born of a gestational mother and those born of a genetic mother as long as the mother is the legal mother of the child at time and place of birth.
The actual subset of children who will benefit from the new interpretation will be relatively small. A US citizen mother who carried a fertilized egg from a donor mother using her husband’s genetic material, where the husband is not a U.S. citizen, or who carried a fertilized egg from a donor mother and an unknown father, can now benefit from the new interpretation as long as she is recognized as the legal parent of the child at birth.
The new policy will be retroactive, which means that U.S. citizen gestational mothers who were previously unable to obtain U.S. passports for children they delivered may now reapply for that benefit. The new policy leaves unaffected existing guidelines for determining citizenship of children born of a surrogate mother using at least one U.S. citizen parent’s genetic material.
U.S. citizen parents living abroad who believe that the new interpretation may apply to their legal children should check the website of the U.S. Embassy or consulate with jurisdiction over their place of residence for guidance on how to register the child’s birth as a U.S. citizen and obtain a U.S. passport for him or her.