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 do to make sure the child will be a U.S. citizen like we are?
As you might know, the basic 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, 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, 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, same-sex couples included. 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 went through some tortuous interpretations, leading to some 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.)
Fortunately, 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).
Details of the law and policy are found on the U.S. State Department page called Assisted Reproductive Technology (ART) and Surrogacy Abroad. (Eventually, a revision should also be posted to the Foreign Affairs Manual at 8 FAM 304.3.)
Regardless, you might want 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.