Is an infant born abroad to an American parent an American citizen? Until fairly recently, the answer was yes—usually. In some situations, children born outside of the U.S. using assisted reproductive technology (ART) and surrogacy have not been considered U.S. citizens by birth. In recognizing the realities of modern families, including how those families grow, the U.S. State Department enacted some policy changes in May 2021.
Under the new policy, the State Department will approve a grant of U.S. citizenship to children born abroad through in vitro fertilization (IVF), surrogacy, and other forms of assisted reproductive technology. The new policy requires that the child born abroad be born to married parents, at least one of whom is a U.S. citizen. In addition, the child must have a biological connection to at least one of the married parents in order to for their citizenship to be approved.
A relatively small number of families may be affected by the change in policy, but the impact on those families will be significant. To understand why, let’s consider some of the situations in which families struggled to have their child’s citizenship approved under previous policy.
Under the previous interpretation of the Immigration and Nationality Act (INA), the long-standing rule was that children born outside the United States through a surrogate were born “out of wedlock.” This was true even when the intended parents, who were to be named on the birth certificate, were married. In addition, the State Department required that in order to be citizens, children born abroad must have a genetic or gestational relationship to a parent who was a U.S. citizen.
Application of these rules led to results that bordered on the nonsensical and required families to navigate mountains of red tape. In one case, two men who married each other in Canada decided to expand their family by working with a surrogate, also in Canada. One spouse was a U.S. citizen, the other an Israeli citizen with a U.S. green card.
Both men contributed genetic material, and their surrogate became pregnant with twins from donor eggs, fertilized using IVF. Each man was the genetic father of one twin. They intended not to reveal which father was genetically related to which child.
However, when they went to the U.S. Consulate in Toronto to establish their sons’ U.S. citizenship and obtain passports for them, only one child was issued a passport. The genetic son of the Israeli citizen father was not considered a U.S. citizen, even though one of his parents was a U.S. citizen. When the family returned to California, they had to get a tourist visa for one of their children to enter the United States. Although the boys shared the same womb and birthday and were being raised by the same parents, one was a citizen and the other was not.
Their fathers sued the U.S. State Department, arguing that the INA says that children born abroad to at least one U.S. citizen parent are granted U.S. citizenship. The State Department’s interpretation was that a genetic relationship to the U.S. citizen parent was required for citizenship. Eventually, after two years, a federal court sided with the fathers in 2019.
In another case, two married men who were themselves born in Israel but who became U.S. citizens had to fight in court for the U.S. citizenship of their daughter. The child, born in Canada to a surrogate, was genetically related to her father who had lived in the U.S. for less than five years. Under the INA, there was a five-year residency requirement for a parent in order for their foreign-born child to be granted citizenship.
Because U.S. policy was that a child born outside the country to a surrogate was considered born “out of wedlock,” the couple’s little girl could not rely on the U.S. citizenship of her non-biological father for her own citizenship status. As with the previous case, the fathers sued the State Department and the court affirmed that their daughter had been a United States citizen from birth
The change in State Department policy may only affect a handful of families each year, but those families tend to be disproportionately headed by same-sex couples. The new policy is a response to the reality that married couples do not necessarily consist of a man and a woman, and that a child’s legal parentage, not their genetic makeup, should determine their citizenship.