U.S. Citizens' in Vitro Children Born Abroad May Now Gain U.S. Citizenship

U.S. State Department recognizes gestational links as counting for citizenship purposes

You may remember some tragic news stories about the U.S. denying citizenship to the children of U.S. citizens who went abroad for in vitro fertility treatments using donor sperm and eggs -- in particular, the case of Ellie Lavi, who became pregnant with the help of a fertility clinic in Israel, and gave birth there.

Following the birth, Levi went to the U.S. embassy to request acknowledgment of her children's citizenship. 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 more information on this, see “Citizenship Through U.S. Citizen Parents (If You were Born Between 11/14/1986 and the Present).“)

The embassy staffers told Levi, however, that the two children were not eligible for citizenship unless she could prove that the egg or sperm used to create the embryo was from a U.S. citizen. In other words, it took the position that a "biological" link must also be a genetic link.

Fortunately, after years of considering its policy in this area, the State Department has recently issued a document stating that a gestational link between mother and child IS sufficient to qualify the foreign born child for U.S. citizenship. See “Important Information for U.S. Citizens Considering the Use of Assisted Reproductive Technology (ART) Abroad.”

Can Ms. Levi's children now be acknowledged as citizens (if they haven't already been)? Presumably, yes -- the rights to U.S. citizenship do not, under current law, depend on meeting any deadline.