partner and I are exploring options to use assisted reproductive technology (ART)
and/or an overseas surrogate to give birth to our child. What do we need to
know to make sure the child will be a U.S. citizen like we are?
As you might
know, the longtime rule for overseas births is that the biological children of
two U.S. citizen parents born outside the U.S. become U.S. citizens themselves,
on condition that at least one parent has lived in the United States. (For
details, see “Citizenship Through U.S. Citizen
Parents (If You were Born Between 11/14/1986 and the Present).“)
born outside the U.S. who have only one U.S. citizen parent may also acquire
U.S. citizenship if the citizen parent lived in the U.S. for at least five
years and, if the sole U.S. citizen is the father, the parents were married or
the father legitimated the child.
portions of the law were, however, written decades ago – back when surrogacy
and fertility treatments were less common, and certain techniques were unheard
of. The legislators never imagined various possibilities, in particular where
no actual genetic relationship exists between parent and child.
In trying to
match the old law to new technology, the State Department currently takes the
position that whether your child becomes a U.S. citizen depends chiefly on the
line is that citizenship currently passes only with the DNA or pregnancy and
through marital relationships.
material from anonymous donors is presumed to be from non-U.S. citizens. Obfuscation
won’t help, either: The State Department routinely asks for genetic test
State Department policy on this matter is more fully discussed in a document
Information for U.S. Citizens Considering the Use of Assisted Reproductive
Technology (ART) Abroad.” As you can see, a whole host of complications can
arise with an ART birth, particularly because the State Department refuses to
make any blanket acknowledgments of which children will qualify as U.S.
citizens in advance – thus possibly leading to sticky situations later,
particularly if neither the country of birth nor the U.S. acknowledge the child
as a citizen. Your best bet is to check in with an experienced immigration
attorney before making any plans.
(By the way,
the issues discussed in this article do not affect babies born on U.S. soil
with the help of ART – they are U.S. citizens regardless of genetics or the