If you have clients in the United States exploring surrogacy overseas, they should proceed with caution. In several recent high-profile cases, the US government has denied birthright citizenship to children born overseas to same-sex married couples. In all three instances, the children have been treated differently from siblings either born earlier or that share biological ties to their US citizen parents. These issues are a result of the application of decades old policies that have failed to keep up with the advancements in Assisted Reproduction Technology (ART) and the Trump Administrations current view that any child born to a gestational surrogate in these situations is to be treated as a child out of wedlock for citizenship purposes.
Historically, the Department of State required a U.S. citizen parent to have a genetic relationship to a child for the purpose of automatically transmitting the parent's citizenship to a child born abroad. In 2014, the Department of State interpreted the definition of child to include the child of a gestational mother even where there is no genetic relationship between the child and gestational mother. The expanded definition of child under the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1401, when addressing the transmission of citizenship at birth to a child born abroad was a welcome change. However, due to rapid advances in ART, gaps continue to exist in State's legal interpretation of child for the purposes of transmitting citizenship to children of U.S. citizens conceived through ART and born abroad, leaving some children stateless. The State's current requirement that parents share a genetic or gestational connection with a child in order for the child to receive the benefit of a parent's U.S. citizenship unnecessarily limits, and introduces confusion to, modern family arrangements achievable through ART.
Further, the current State Department stance that any child born to a gestational surrogate shall be considered a child born out of wedlock has had dire results for same sex couples where both dads are actual US citizens. Children born out of wedlock face higher legal and logistical hurdles to obtaining birthright citizenship. They must: 1. submit to DNA tests proving genetic links to U.S. citizen parents; 2. prove and testify that they can support their children financially; and 3. prove that they have been present in the United States for at least five years prior to the child’s birth.
State Department guidelines apply to heterosexual couples as well, but same sex couples are more often affected, simply by virtue that they are more likely to need ART and are more likely to be scrutinized for a genetic relationship between the child and a U.S. citizen. Same-sex couples are more likely than heterosexual couples to be asked to prove that they are biologically related to their children. According to the U.S. Citizenship and Immigration Services Policy Manual , a child’s birth certificate as recorded by a proper authority is sufficient evidence to determine a child’s genetic relationship to the parent (or parents). However, in the United States, as with other countries, same sex (particularly male) parents may invite closer scrutiny by government officials.
The ART policy has been decried as unfair by lawmakers, including Speaker of the House Nancy Pelosi, who issued a statement:
This outrageous policy from the State Department is an unconscionable attack on American families and violates our Constitution. Once again, the Trump Administration is demonstrating just how far they are willing to go to undermine our core values and advance their hateful agenda by denying citizenship to children born abroad to same-sex American couple, as well as those who seek medical treatment overseas in order to conceive.
Although speaker Pelosi makes a good sound bite, unfortunately the truth is that the ART rules have been in place since at least the mid-2000s, and requirements pertaining to biological parentage have existed since the 1990s.
Currently the American Bar Association’s Family Law Section (work done by our ART Committee) and others in the ART industry are lobbying the Department of State to expand the definition of child for purposes of citizenship acquisition under the INA to include those children born to intended parents, even if those legally recognized parents do not have a biological (genetic or gestational) relationship to the child. This expended definition should be accompanied by guidelines that ensure the intended parental relationship is valid and that it is demonstrated prior to acquisition of citizenship. Once the relationship is determined to be valid under the guidelines, the Department of State would not be able to consider the child to be born out of wedlock. Requiring a biological connection between both parents and a child to find a presumptive child-parent relationship for purposes of citizenship acquisition is out of step with judicial interpretations of the INA, advances in modern technology, and parents’ constitutionally protected choices for reproduction.
The families currently being denied citizenship for their children may prevail in individual court challenges, but at great financial cost and emotional stress. Under current rules, there exists the very real possibility that future children may be stateless, despite having one or more U.S. citizen parents. Until the rules are changed, the only secure way to ensure that their children will be U.S. citizens is for U.S. intended parents to pursue surrogacy in the United States.