Assisted Reproductive Technology (“ART”) provides an opportunity for individuals of all backgrounds to now become parents. While the public’s views and technology have rapidly evolved, laws take significantly longer to change and there is no uniformity among the states, let alone internationally. Significantly, U.S. immigration law has lagged far behind with serious implications for U.S. citizens considering the use of ART abroad.
The Immigration and Nationality Act (“INA”) governs the transmission of U.S. citizenship at birth to a child born abroad. In its current form, the Department of State interprets the INA to require a U.S. citizen parent to have a genetic connection to a child in order to transmit U.S. citizenship to the child at birth. This approach leads to absurd results.
For example, a child whose U.S. citizen mother carries and gives birth to him abroad would not be a citizen if he was conceived via in vitro fertilization using a donated egg and the sperm of her foreign national husband. However, a child would be a citizen if she is conceived using the egg of a foreign national mother and the sperm of her U.S. citizen father. This policy can result in long delays and endless red tape in trying to acquire citizenship for the child born abroad. In some cases, it could even result in stateless children.
Although the Department of State has recently recognized that its approach to ART is outdated, it has not yet amended that approach. Thus, any U.S. citizen contemplating ART or surrogacy resulting in a child born abroad should consult with the appropriate professionals prior to engaging in ART services, such as an immigration attorney, an ART attorney and the appropriate officials at the U.S. Embassy or Consulate in the country where the child will be born.
For more information on current DOS policy, please visit the Department of State’s website at http://travel.state.gov/content/travel/english/legal-considerations/us-citizenship-laws-policies.html