Originally published in Florida Family Law Commentator Spring 2015.

It is time for Intended Parents utilizing assisted reproductive technologies (ART) abroad to celebrate. For United States citizens engaging in ART arrangements outside U.S. borders, the laws governing transmission of citizenship to those babies born abroad has finally kept pace with the science.

As always, the question of whether citizenship will transmit to children born abroad through ART must be carefully considered and a myriad of factors should be satisfied before advising your clients to travel abroad for ART procedures. Although the U.S. fosters a positive environment for ART arrangements, there is no federal law governing these arrangements so each state acts independently in drafting its statutes. ART practitioners must ensure their clients choose ART friendly jurisdictions. But even when the legal environment within our borders is friendly, Intended Parents may still elect to go abroad for financial reasons. The costs for surrogacy and egg donation within the U.S. can be crippling which definitely impacts decision making. A U.S. based surrogacy, for example, can cost upward of $100,000.00. Fees include paying for the agency to facilitate the surrogacy, the surrogate’s fee and professional fees for the lawyers, the doctors , psychologists, insurance and a host of incidentals which vary case by case. Egg donation, although more cost friendly, is not the only cost associated with that procedure so an Intended Parent may feel sticker shock choosing this alternative. Sadly, so many desperate parents flippantly choose affordable clinics abroad, failing to consider the final step in the journey which is how to get that child back home on U.S. soil.

Will a Child Born Abroad Obtain U.S. Citizenship and Be Able to Travel Back to the Home Country

Both the U.S. Department of State (DOS) and the U.S. Citizenship and Immigration Service (USCIS) share authority to govern the transmission of U.S. citizenship. The old rules regulating ART and citizenship were archaic and did not contemplate the plethora of scientific advances in the ART arena. Consequently, the former rules required a genetic relationship with a U.S. citizen parent in order for the child born abroad to acquire U.S. citizenship. That policy had the effect of denying citizenship to babies born via egg donation or children born out of wedlock. It wreaked havoc on Intended Parents and there are many examples of families stuck overseas, unable to return to the U.S. with their newest family members. Because those rules caused so many snags with U.S. parents utilizing ART abroad, the DOS and the USCIS issued policy changes in October 2014. The amended rules , PA-2014-009, clarify the definition of a “mother” and “parent” under the Immigration and Nationality Act to include gestational mothers using ART regardless of whether there is a genetic connection.
The terms “mother” and “parent” under the INA includes any mother who:

  • gave birth to the child, and
  • was the child’s legal mother at the time of birth under the law of the relevant jurisdiction.

The USCIS issued a policy alert detailing and highlighting the rational for the rule change and clarifies the intention of the rule. The new interpretation of the rules encompass a broader and more inclusive view of exactly who is considered a parent and precludes the requirement for a genetic connection. See www.uscis.gov/policymanual/ Updates/20141028-ART.pdf.

Based on the updates and once certain factors of proof are satisfied, parents can apply for citizenship by:

  • petitioning for the child based on their relationship
  • be eligible to have the child petition for her based on their relationship, and
  • be able to transmit U.S. citizenship to the child if the birth mother is a U.S. citizen.