Birth Mothers Who Aren't Genetic Mothers Recognized by USCIS

USCIS issues policy memo on assisted reproductive technology implications.

As discussed in various Nolo books and articles, U.S. citizen parents can, if other legal requirements are met, transmit citizenship to their children who are born overseas. (See, for example, Nolo's article, “Citizenship Through U.S. Citizen Parents (If You were Born Between 11/14/1986 and the Present).“)

Recent advances in reproductive technology, however, have raised questions about what happens, legally speaking, when the child is not genetically related to either U.S. citizen parent, yet was carried and born to a U.S. citizen mother using assisted reproductive technology (ART).

The State Department, after initially refusing to acknowledge non-genetic relationships, eventually came around to the position that whether a child derives U.S. citizenship depends on:

  • Whether the child is genetically or biologically related to at least one U.S. citizen parent, either through genetics or “gestationally,” meaning that the mother carried and gave birth to the child. If not; for example, if the parents arrange for a surrogate to carry a baby conceived from a donor sperm and egg, citizenship will be denied.
  • Whether the source of the sperm and the source of the egg are married. If not, separate legal standards relating to “out of wedlock” births apply under Section 309(c) of the Immigration and Nationality Act (I.N.A.).

To see more on the U.S. State Department policy on this matter, see “Important Information for U.S. Citizens Considering the Use of Assisted Reproductive Technology (ART) Abroad.”

On October 28, 2014, U.S. Citizenship and Immigration Services issued a policy document that confirms the State Department position and expands its implications slightly for non-citizenship purposes, explaining that:

  • either genetics or gestation (giving birth to a child) can give rise to a parent-child relationship for immigration purposes
  • a mother who gives birth to a child who is not a genetic relation and is the legal parent at birth is in a "petitionable" relationship with that child (in other words, either the child or the mother may be able to file a family-based immigration petition in light of that relationship), and
  • a U.S. citizen birth mother who is not genetically related to the child may transmit citizenship at birth or later, when all legal requirements are met.

This is a highly complex area of U.S. immigration law, however, so see an attorney before making any plans.