The US Department of State has issued a fact sheet containing critical information for US citizens considering the use of assisted reproductive technology (ART) abroad, the automatic transmission of US citizenship, passport issuance to minors and other important related issues. Among other things, the fact sheet notes that citizenship is not necessarily automatically transmitted in cases where Assisted Reproductive Technology (ART) has been used to conceive a child born outside of the United States.
The Immigration and Nationality Act (INA) governs transmission of US citizenship at birth to a child born abroad at §§ 301 and/or 309. The Department of State interprets the INA to require a US citizen parent to have a biological connection to a child to transmit US citizenship to that child at birth. That is, to transmit US citizenship to a child conceived through Assisted Reproductive Technology (ART), a US citizen father must be the genetic parent, and a US citizen mother must be either the genetic or the gestational and legal mother of the child at the time and place of the child’s birth. (A gestational mother is the woman who carries and gives birth to a child.)
The US Department of State (DOS) determines the citizenship of children born abroad to a US citizen parent. US law governs this determination. So, even if local law recognizes a surrogacy agreement and finds that US parents are in fact the legal parents of a child conceived through Assisted Reproductive Technology (ART), if the US citizen parents have no biological connection to the child, the Department of State will not consider the child to be a US citizen at birth.
DoS determines the citizenship of each child who applies for documentation as a US citizen individually, on a case by case basis, after carefully considering the specific facts surrounding the child’s birth and his or her parents’ situation. They cannot “pre-adjudicate” a citizenship determination. In many cases involving ART, the best evidence available to parents to show their biological connection to a child born to a foreign surrogate is DNA testing. These tests cannot be done until after the child is born.
Children born abroad to foreign surrogates who are not biologically related to a US citizen parent may have trouble entering the US. If a child is not biologically related to a US citizen parent, that child will not acquire US citizenship automatically at birth. However, in some countries, neither will the child acquire citizenship of his/her country of birth because the surrogate mother is not considered the child’s parent. In such a case, it may be impossible for that child to get a US passport or a passport from the country of birth and/or from third countries, depending upon the circumstances of the case. So DOS notes that it may be helpful for US parents considering a foreign surrogacy arrangement to consult with an immigration attorney before embarking on such an arrangement.
The Department is aware of cases where foreign fertility clinics have substituted alternate donor sperm and eggs for US parents’ genetic material, either purposefully when the planned genetic material turned out not to be viable, or through accidental laboratory errors. The intended parents learned of these undisclosed switches only when the parents obtained DNA tests after the child’s birth, as part of the process of documenting the child’s citizenship to obtain a US passport. Such situations can leave a child stateless or otherwise unable to leave the country of birth.
A US citizen parent who has a biological child overseas, including via a foreign surrogate mother, may apply for a Consular Report of Birth Abroad of an American Citizen (CRBA) and a US passport for the child at the US Embassy or Consulate in the country where the child was born.
A CRBA certifies that a child born abroad is a US citizen. A CRBA does not determine the identity of the child’s legal parents. Therefore, in general, the name/s listed on the CRBA is/are the US citizen parent/s with a biological connection to the child. A second parent may be listed on the CRBA if the second parent demonstrates a legal parental relationship to the child under local law; the CRBA does not, however, serve as a record of that individual’s status.
A US passport also documents the citizenship status of the bearer and, during the period of its validity, is proof of US citizenship. If the Embassy or Consulate determines that the child is a US citizen, he or she will need a US passport to enter the US. As part of the application process, parents must provide evidence to the local US Embassy or Consulate of the child’s identity, birth, and citizenship. In an ART case, US post may request that parents provide medical and documentary evidence of a child’s conception and birth and such other evidence to demonstrate the biological connection between parent and child, along with evidence of the parents’ identity, citizenship, requisite physical presence in the US, and legal status as the child’s parent under local law. Parents may also arrange for DNA tests of the child, using approved labs and procedures as described in our Information Sheet for Parents on US Citizenship and DNA Testing.
If the child is biologically related to a US citizen father, but not to the father’s spouse, DoS will treat the case as a birth out of wedlock to a US citizen father, pursuant to INA § 309(a). The father must meet that section’s additional requirements. If the child is biologically related to a US citizen mother, but not to her spouse, DoS would treat the case as a birth out of wedlock to a US citizen mother. The mother must also meet the requirements of INA § 309(c). If the child is the biological child of both parents, and the biological parents are married to one another, INA § 301 requirements apply, including the requirement that at least one of the US citizen parents resided in the US prior to the child’s birth.
Regulations governing issuance of a US passport to a minor under 16 are at 22 Code of Federal Regulations (CFR) § 51.28. Essentially, the legal parents of the child must both consent to the passport application unless an exception enumerated at 22 CFR § 51.28 exists. If, under local law, a surrogate mother is the legal mother of a child born through ART, then the surrogate mother must consent to passport issuance for the minor child or, an exception to the two-parent consent rule in 22 CFR § 51.28 must apply. The passport applicant bears the burden of demonstrating citizenship and identities of the minor’s legal parents under 22 CFR §§ 51.23 and 51.40.