My 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).)
Children 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.
These 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. Nor did they imagine how many people could, through ART, be considered "parents" of one particular child. The technology can potentially involve up to five “parents” in a child's conception and birth: a sperm donor, an egg donor, a surrogate woman who carries the fertilized egg, and two nonbiologically related people who plan to actually raise the 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 following factors:
So, for example, if a male, same-sex married couple, one of whom is a U.S. citizen, arranged for an overseas surrogate to give birth to a child using the U.S. citizen's sperm, then despite their marriage, they would need to prove the child's citizenship using the "out-of-wedlock" standards of the law. This largely involves the father legitimating the child and agreeing to provide financial support.
But if the non-U.S. citizen provided the sperm, there would likely be no route to U.S. citizenship (though this is a matter of ongoing litigation as of 2020, in the case of Dvash-Banks v. Pompeo, being handled by the group Immigration Equality).
For details of the law and policy, see the Foreign Affairs Manual at 8 FAM 304.3. and the U.S. State Department page called Assisted Reproductive Technology (ART) and Surrogacy Abroad.
The bottom line is that citizenship currently passes only with the DNA or pregnancy and through marital relationships.
Genetic 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 results.
As you can see, a 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. This can lead to tricky situations, 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 parents’ citizenship.)