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State of the ART: Citizenship Considerations in Foreign Surrogacy Arrangements

American couples who may be considering using a foreign birth surrogate should familiarize themselves with the United States Department of State’s policy regarding transmission of U.S. citizenship to a child born abroad. Department of State has jurisdiction over the determination of whether a child born to a U.S. citizen parent overseas has acquired U.S. citizenship.

In a recent policy statement, Department of State took the position that a child conceived through Assisted Reproductive Technology (“ART”) would automatically derive U.S. citizenship only if the child was born to a U.S. citizen father who was the genetic parent and to a U.S. citizen mother who was the genetic or gestational and legal mother at the time and place of birth abroad.

Therefore, unless the U.S. citizen parents can show that they are the child’s biological parents, the legal requirements for transmission of citizenship at the time and place birth abroad cannot be met. The absence of a biological relationship may preclude a child’s entry to the United States after the child has been born abroad to a surrogate mother.

Department of State considers the results of a DNA test to be the best evidence of the existence of a biological connection between the U.S. citizen parents and the child.

At the same time, the Department of State’s policy statement alerts prospective U.S. parents to the possibility that errors in the ART process, such as accidental switches of genetic material, could cause Department of State to determine that one of the child’s parents was not legally capable of passing along citizenship to the child and deny him or her a U.S. passport. Accordingly, prospective parents face some risk that a child born to a surrogate mother abroad might be unable to leave the country of birth as well as be considered stateless -- if the child could not acquire the surrogate mother’s citizenship under local law.

If parents can establish, through medical and documentary evidence, that their U.S. citizenship has been transmitted to their child, then they can apply for a U.S. passport to document their child’s U.S. citizenship status and facilitate his or her entry into the United States.

As the Department of State’s advisory cautions, prospective U.S. parents should consult with an immigration attorney before entering into a foreign surrogacy arrangement.

Timothy D. Widman is a San Jose Immigration Attorney and the owner of the Law Office of Timothy D. Widman.

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