Who is a child's parent? The question is not as simple as it appears. With the development and increasing use of assisted reproductive technology (ART), including surrogacy, legal issues have arisen around what parenthood means when it comes to the citizenship of a child born outside the United States.
In January, 2014, the United States Department of State (DOS) outlined a policy change regarding the citizenship status of children who were born outside the United States through the use of ART. Prior to the policy change, a child born abroad had to have a genetic relationship with a U.S. citizen parent in order to acquire U.S. citizenship at birth through that parent.
The updated policy means that “gestational mothers,” women who give birth to a child outside the U.S. through ART, and who are recognized in the country of the child's birth as the legal parent, may transmit citizenship or immigration benefits to the child even if they are not genetically related to the child.
This policy applies retroactively. Thus, applicants who previously applied for and were denied a Consular Report of Birth Abroad may now be eligible for one. The Department of State will not reopen applications that were denied in the past, however, so it will be necessary to reapply in order to benefit from the new policy.
A child is considered to have been born in wedlock where his genetic and/or gestational parents are married to one another, and are both recognized as the child's legal parents in the country where the child was born. Children in this situation are now eligible to acquire citizenship under Immigration and Naturalization Act Section 301. Previously, citizenship was only available under that section when both parents were genetically related to the child and were married to each other at the time of the child's birth.
In a situation in which a citizen father is genetically related to a child, but his non-citizen spouse is not genetically related to the child, the new policy allows the father to transmit citizenship to the child. A child is also eligible for citizenship under INA Section 301 when born to a married lesbian couple if one parent was the gestational mother and the other the genetic mother. In that circumstance, it makes no difference which of the parents is the U.S. citizen.
Although the new policy opens doors to citizenship for many children born through ART outside of the United States, it does not confer immigration benefits to all such children. Even if a (non-genetically related) U.S. citizen parent is recognized as the child's legal parent in the country of birth, the child will not acquire U.S. citizenship by birth if he or she is carried to term by a surrogate and born abroad.
If you are considering building or expanding your family through assisted reproductive technology and would like to learn more about the implications of ART when a child is born outside the United States, or if you are the parent of a child born outside the country through ART, we invite you to contact Howard County, MD immigration lawyer Van T. Doan to learn more.