Citizenship of Children Born Abroad Through Surrogacy I KingSpry

Federal Court Addresses Citizenship of Children Born Abroad Through Surrogacy

Photo of attorney Rebecca A. Young

Posted on March 4th, 2019
by Rebecca A. Young

On February 21, 2019, the United States District Court for the Central District of California clarified the citizenship rights of children born abroad.

Andrew, a U.S. citizen, moved to Israel in 2007 to attend graduate school.  While there, he met Elad, an Israeli citizen.  The couple moved to Toronto in 2010, and married there.  The couple, both men, chose to have a family using assisted reproductive technology.  Each of them created an embryo using their own genetic material and an egg from an anonymous donor.  They contracted with a gestational surrogate to carry both embryos to term.  Their children were born four minutes apart in 2016.

Following the birth of the children, the parents completed necessary paperwork and legal proceedings in Canada to establish that both parents are the parents of both children.  When they appeared at the U.S. Consulate in Toronto, they were asked by the State Department, which processes such applications, to prove their biological relationship with the children.  U.S. citizenship was granted only to the biological child of Andrew.  The other child was granted only a tourist visa to travel with the family to the United States.

Following arrival in California, the parents petitioned the Court for a determination of the child’s citizenship status.

The Court’s Decision

The Immigration and Nationality Act determines the eligibility of children born abroad for United States citizenship.  Separate provisions of the Act govern citizenship for children born to married parents and those born out of wedlock.  The section of the law governing citizenship for children born out of wedlock requires proof of a biological relationship between the child and a U.S. citizen.  Absent this biological relationship, the child is not granted citizenship at birth.

The Court determined that the statutory provision governing citizenship of children born to married parents does not require proof of a biological relationship with both parents.  Further, if the child is born during the parents’ marriage, and only one parent is a U.S. citizen, it is not necessary that the child have a biological relationship with the U.S. citizen to be granted citizenship at birth.

The Court stated that other than the gender of the parents in this case, the facts of this case are the same as the previous cases.  Therefore, the Court found that the child acquired U.S. citizenship at birth.

 

heARTbeat is a publication of KingSpry’s Adoption Law and Assisted Reproductive Technology Law Practice Group. It is meant to be informational and does not constitute legal advice.