A Bulletin from the U.S. Department of State – Bureau of Consular Affairs which highlights the specific concerns of a single female intended parent using anonymous egg donors traveling abroad while pregnant as well as U.S. citizen intended parent(s) employing ART in foreign countries. As you will see below, there are complicated legal issues surrounding the utilization ART. An attorney practicing reproductive law can properly counsel intended parents on the best course of action.
Transmission of U.S. citizenship at birth to a child born abroad is governed by Immigration and Nationality Act (INA) Sections 301 and/or 309. The Department of State interprets the INA to require a U.S. citizen parent to have a biological connection to a child in order to transmit U.S. citizenship to the child at birth. In other words, in order to transmit U.S. citizenship to a child conceived through Assisted Reproductive Technology (ART), a U.S. citizen father must be the genetic parent or a U.S. 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 the child.)
The determination of citizenship of children born abroad to a U.S. citizen parent is the responsibility of the U.S. Department of State and is governed by U.S. law. Therefore, even if local law recognizes a surrogacy agreement and finds that U.S. parents are the legal parents of a child conceived through ART, if the U.S. citizen parents do not have a biological connection to the child, the child will not be a U.S. citizen at birth.
The Department determines the citizenship of each child who applies for documentation as a U.S. 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. We 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 who are born abroad to foreign surrogates and who are not biologically related to a U.S. citizen parent can have trouble entering the United States. If the child is not biologically related to a U.S. citizen parent, the child will not acquire U.S. citizenship automatically at birth. However, in some countries, the child will not acquire the citizenship of the country where he or she is born because the surrogate mother is not considered the parent of the child. In such a case, it may be impossible for that child to get a passport from the United States or the location of birth, and/or from third countries depending upon the circumstances of the case. It may be helpful for U.S. parents considering a foreign surrogacy arrangement to consult with an immigration attorney first.
The Department is aware of cases where foreign fertility clinics have substituted alternate donor sperm and eggs for the U.S. 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 for the purposes of obtaining a U.S. passport. Such situations can have the unfortunate consequence of leaving a child stateless or otherwise unable to leave the country of birth.
A U.S. 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 U.S. passport for the child at the U.S. Embassy or Consulate in the country where the child was born.
A CRBA certifies that a child born abroad is a U.S. 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 U.S. 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.
The U.S. passport also documents the citizenship status of the bearer and, during the period of its validity, is proof of U.S. citizenship. If the Embassy or Consulate determines that the child is a U.S. citizen, he or she will need a U.S. passport to enter the United States. As part of the application process, the parents must provide evidence to the local U.S. Embassy or Consulate of the child’s identity, birth, and citizenship. In an ART case, the parents may be requested to provide medical and documentary evidence of the child’s conception and birth and such other evidence as would demonstrate the biological connection between parent and child, along with evidence of the parents’ identity, citizenship, requisite physical presence in the United States, 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 U.S. Citizenship and DNA Testing. If the child is biologically related to a US citizen father, but not to the father’s spouse, the case would be treated as a birth out of wedlock to a U.S. citizen father, pursuant to INA 309(a), and the father would have to meet the additional requirements of that section. If the child is biologically related to a U.S. citizen mother, but not her spouse, the case would be treated as a birth out of wedlock to a U.S. citizen mother, and would have to 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 would apply, including a requirement that at least one of the US citizen parents had resided in the United States prior to the child’s birth.
The regulations governing issuance of a U.S. passport to a minor under 16 are found in 22 Code of Federal Regulations (CFR) Section 51.28. Essentially, the legal parents of the child must both consent to the passport application unless one of the exceptions enumerated under 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 would need to consent to passport issuance for the minor child or one of the exceptions to the two-parent consent rule in 22 CFR 51.28 would have to be met. The burden of demonstrating the citizenship and identities of the minor’s legal parents rests with the passport applicant under 22 CFR 51.23 and 51.40.