Modernizing US Citizenship Laws Regarding Assisted Reproduction

There’s good news for US citizens living abroad who use assisted reproductive technology to build their families! For years the State Department has required that a child born outside of the United States be genetically related to the US citizen parents in order for that child to gain American citizenship at birth. This interpretation has been relaxed slightly to allow mothers – whether they be genetic mothers or gestational mothers – to pass on US citizenship to their children. Gestational mothers must also be considered the child’s legal mother under the laws of the country where the child was born.

Professor Rose Cuison Villazor of the UC Davis School of Law, an immigration and citizenship expert, offers me this take: “The new State Department rules highlight the ways in which federal law impacts parentage and family law. Although American family law is typically governed by the states, as these rules make clear, federal law also plays a big role in domestic relations.”

A Gestational (But Not Genetic) Mother

At first blush this doesn't seem to be much of an advance. But consider the situation of Enid Abrahami, an American citizen living in Israel. She was a single woman who relied on the assistance of an egg and a sperm donor to conceive her daughter, whom she carried. When she tried to obtain citizenship by applying for a Consular Report of Birth Abroad for her daughter she was told that she could not because she lacked a genetic connection to her child. She, and other women who pursue egg donation to build their families, will benefit from this interpretative change – particularly if they are single, have a same-sex spouse or partner, or a non-US citizen spouse or partner.

Stateless Babies

The State Department appears to have been reacting to the problem of children who might have wound up being citizens of no country at all. The US (along with most of the Western Hemisphere) recognizes birthright citizenship. If you were born in the US, you are an American citizen. By contrast, Europe, Asia, and much of Africa define citizenship as something that is handed down from parents to children. If, for example, an American woman gave birth in France to a child conceived using egg donation, the child would not gain French citizenship based on his place of birth, and he would not have gained American citizenship because he was not genetically related to his mother. He would have been stateless, unable to get travel documents and enjoy the benefits of citizenship in any country. Last week’s shift in policy changes that.

A Partial Solution

The new State Department guidance helps some families transmit American citizenship to their children, but there are several categories of families who will not see any benefit – and, most paradoxical, even certain children within families. These families could include:

• Bi-national heterosexual couples where the male partner is a US citizen who rely on the assistance of a sperm donor
• Bi-national heterosexual couples where the male partner is not a US citizen who rely on an egg donor and a gestational surrogate
• Bi-national lesbian couples where the biological and gestational mother is not a US citizen
• Bi-national gay couples who rely on a gestational surrogate where the biological father is not a US citizen

Consider the situation of a bi-national gay couple with a gestational surrogate outside of the United States. If the couple has twins and each partner is the biological father of one of the babies, one of the twins would be eligible for US citizenship, and the other would not. Depending on where the children are born and the nationality of the biological parent, the child may face statelessness. (Intended gay parents from Israel and Spain have faced similar issues recently.)

Prof. Villazor tells me: “The rules’ ongoing privileging of genetics will continue to make it difficult for US citizen couples whose child is carried by a non-US citizen surrogate to establish their child’s citizenship. In other words, the rules continue to place limitations on the ability of some families to grow.”

The short answer to these questions is that intended parents who pursue surrogacy and other assisted reproductive technology should consult with a lawyer who is well-versed in these citizenship and nationality issues early in their family building process. Families may require the advice of lawyers in the United States, the country where they reside, the country of their spouse or partner, and the country where their children may be born.