On January 14, 2014, the US State Department (DOS) announced a new policy change (that will also be followed by the US Department of Homeland Security (DHS)) regarding immigration status of children born abroad through Assisted Reproductive Technology (ART). This is an important change for family immigration benefits that reflects the government’s acknowledgment – finally – that families are created in more high-tech and socially different ways in the 21st century. In addition, ART affects transmission of US citizenship, determined by DOS and described further below. The sections below deal with situations involving whether a child is born in or out of wedlock or is legitimated. These are all in addition to the ways child status through adoption or marriage (step-children) impacts immigration status, which is not discussed here.
Specifically, for immigration purposes, i.e., sponsorship, DOS stated that:
The previous policy required that a mother have a genetic connection to a child in order to qualify as a parent for the purpose of obtaining immigration benefits. Under the new policy, birth mothers (gestational mothers) who are also the legal parent of the child will be treated the same as genetic mothers for the purposes of immigration benefits.
The definition of “child” will now include the child of a genetic or gestational parent who is also a legal parent at the time of the child’s birth. Under the new interpretation, INA Section 101(b) (8 U.S.C. Section 1101(b)) treats a child as being born “in wedlock” under INA Section 101(b)(1)(A) when the genetic and/or gestational parents are legally married to each other at the time of the child’s birth and both parents are the legal parents of the child at the time and place of birth.
A “child legitimated” and a “legitimating parent or parents” in INA Section 101(b)(1)(C) includes a gestational mother who is also the legal mother of the child. The term “natural mother” in INA Section 101(b)(1)(D) includes a gestational mother who is the legal mother of a child at the time and place of birth, as well as a genetic mother who is a legal mother of the child at the time and place of birth.
The new policy will be retroactive. There will be cases in which children born abroad to a gestational and legal mother were previously denied an immigration benefit under the prior interpretation. In such cases, parent(s) must submit a new application for their child, if they wish to re-apply. The application must include sufficient evidence demonstrating that they meet all relevant statutory and regulatory requirements as well all appropriate fees.
For transmission of US citizenship, things become more complicated since there must be a biological connection to one or both parents claiming to transmit citizenship. Thus, DNA testing plays a much more critical role, but it can only be done after the child is born. DOS recommends exercising caution in the process because it cannot pre-adjudicate citizenship status (either for Consular Reports of Birth Abroad or US passports) prior to the child’s birth.
Here, DOS warns of the following in its memo, Important Information for U.S. Citizens Considering the Use of Assisted Reproductive Technology (ART) Abroad:
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.
DNA testing can be quite the rigamarole for families because the State Department has very strict requirements about how, when and where the testing must be done. Of course, US citizenship is the supreme prize for many families. Therefore, the government is extremely cautious and particular in this regard. The link above describes a few ways families have suffered through fraud or mistake in the ART processes abroad. Therefore, parents need to exercise extreme caution in this area.