Will Our Surrogate Child Born Overseas Acquire U.S. Citizenship From Us?

The latest rules for passing U.S. citizenship to children born outside the U.S. using ART or a surrogate birth mother.

By , J.D. · University of Washington School of Law

If you and a life partner are U.S. citizens exploring options to have an overseas surrogate mother give birth to your child, perhaps with the help of assisted reproductive technology (ART), you are not alone. International surrogacy, in which a woman is hired to carry a child to term, is a not uncommon option for people who, for whatever reason, cannot otherwise carry or give birth. Nevertheless, you are no doubt wading through numerous practical and legal concerns.

This article will address a legal question that could have a major impact on your child's future: How can you make sure that the child will be a U.S. citizen like you are, and can therefore travel to the United States with you, and receive the same benefits there? It's an area of law that has been in flux, with some troublesome lags in applying it to scientific progress in this area.

Why Do Some U.S. Parents Choose International Surrogacy?

To avoid tangling with U.S. legal requirements on passing citizenship to a child, it makes more sense to engage a surrogate mother who lives in the United States. It's entirely legal in the U.S., though highly regulated.

Babies born within the United States or its outlying possessions (American Samoa and Swains Island) are automatically U.S. citizens, by law. This is true regardless of whether the birth took place with the help of ART, and regardless of the parent's genetic relationship to the child, or their own citizenship (though the law regarding parental rights will depend on state law).

However, some U.S. parents are unable to find a local surrogate; at least, not without waiting an unacceptably long time for a match to be made. Or, they might find that the costs are less for hiring a surrogate overseas. Surrogacy fees in the United States are reportedly among the world's highest, at $100,000 and up. In other countries, the fee might be one third that amount.

If cost is your primary motivator in making this decision, don't forget to factor in not only the surrogate's fee, but travel costs (a long stay in the foreign country might be necessary), legal costs, and so on. And do yourself a favor and stick with countries where there's nothing legally shady about a surrogacy arrangement.

Background Rules for Passing U.S. Citizenship to a Child Born Abroad

As you might know, the basic law 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 United States 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, in cases where 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, 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, same-sex couples included.

Today's 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.

Current Requirements for Passing U.S. Citizenship to a Child Born to an International Surrogate

In trying to match the old law to new technology, the State Department went through some tortuous interpretations, leading to tragic situations where citizenship could not be passed along. (If, for example, a male, same-sex married couple, one of whom was a U.S. citizen, arranged for an overseas surrogate to give birth to a child but the non-U.S. citizen provided the sperm, there would have been no route to U.S. citizenship.)

In May of 2021, the State Department took steps to simplify matters. It issued new instructions to consulates around the world, stating that U.S. citizenship must be granted to babies born abroad to married couples with at least one U.S. citizen parent, no matter which parent is biologically related to the child by either genetics or gestation (having developed in that parent's womb).

Still, there must be some link; thus the "five-parent" situation described above, where both sperm and egg are donated for an overseas birth, will not be recognized.

EXAMPLE 1: Ron, a green card holder, and Ken, a U.S. citizen, are a married same-sex couple. They wish to have a child, and find a potential egg donor and surrogate in India. After traveling there, Ron provides sperm for fertilization. Nine months later, a baby is born. That baby is a U.S. citizen at birth, because of Ken's citizenship, the couple's legal marriage, and the genetic relationship between Ken and child. If all those three things hadn't been true, however (for example, if the couple was in a civil union, not a legal marriage, or if they'd also found a sperm donor), their hope to have the child gain U.S. citizenship would have been stymied.

EXAMPLE 2: Marta, a U.S. citizen, lives abroad with her foreign-born husband, but both are infertile. They arrange for both an egg and a sperm donor, and the child is born outside the United States. Because of Marta's gestational relationship to the child, she is able to pass her U.S. citizenship to it.

How Do Parents of a Surrogate Child Born Abroad Prove Its U.S. Citizenship?

Following the child's birth, one or both U.S. citizen parents should contact the nearest U.S. consulate. It can issue documentation showing the child's U.S. citizenship, known as a Consular Report of Birth Abroad (CRBA). You should also be able to obtain a U.S. passport for the child, now or later. Be aware, however, that some countries' laws state that a surrogate mother is considered a child's legal mother, who will need to consent to the child's travel and receipt of a U.S. passport. Check with a local legal expert on this.

The exact procedures for making the application for the Consular Report of Birth Abroad depend on the consulate. Some require an online application. Others require a paper application, in which case you will need to complete Form DS-2029, Application for Consular Report of Birth Abroad of a Citizen of the United States of America. Be sure to list the U.S. citizen parent(s) on this form, not the surrogate.

You will also (depending on the consulate's exact instructions) need to provide:

  • evidence of the parent(s)' U.S. citizenship
  • evidence of the parent(s) previous residence in the United States
  • evidence of the child's birth certificate and identity
  • medical and documentary evidence of the child's conception, birth, genetic or gestational connection to the parents, and
  • information about the child's legal status with regard to the U.S. parents under local law.

And, you'll need to pay a fee of $100 (2023 figure).

For More Information on U.S. Citizenship and ART

Details of the relevant law and policy are found on the U.S. State Department page called Assisted Reproductive Technology (ART) and Surrogacy Abroad and the Foreign Affairs Manual at 8 FAM 304.3.) U.S. Citizenship and Immigration Services (USCIS) sets forth its parallel rules in its Policy Manual at Volume 6, Chapter 3.

Regardless, you might want to check in with a either an established and reputable international surrogacy agency and/or an experienced immigration attorney before making any plans. These professionals can help ensure that your arrangements are made in a country that's friendly toward surrogacy and that you won't face legal barriers to returning to the U.S. quickly and smoothly with your newly born child.

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