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State Department Slowly Catches Up to Reproductive Science

Friday, August 1, 2014

Earlier this year, the U.S. State Department (DOS) shifted its policy on how citizenship is transmitted to children who are conceived using Assisted Reproductive Technology (ART) and born outside of the United States. The DOS’s previous policy required a child to have a genetic link to a U.S. parent in order to transmit citizenship. This left American mothers who had used donor eggs -- along with sperm from an unknown or non-citizen donor/father -- mired in a snarl of bureaucratic red tape to get their child back into the U.S.
Now, a gestational mother is considered the biological mother for purposes of transmitting citizenship to a child. This means that, regardless of the father’s citizenship or an egg’s provenance, a U.S. citizen mother who gives birth abroad will give birth to a child who is also eligible for U.S. citizenship.
Another major policy change deals with legally-married, same-sex mothers. Now, the child of legally married mothers – even if the baby is conceived from one mother’s egg but carried by the other – will be considered born “in wedlock” under current State Department policy. This takes a considerable burden off of same-sex mothers who give birth overseas. Formerly their children were considered born out of wedlock, and thus subjected to additional bureaucratic scrutiny before being granted citizenship.
Finally, a mother who is a U.S. citizen and gives birth abroad through a surrogate, but with the U.S. citizen mother’s egg, can apply for a passport and a Consular Report of Birth Abroad (“CRBA”) for her child. A second parent can be listed on the CRBA, as well, assuming they are able to document a legal relationship that is valid under local law.
The new policy is retroactive. So, if a foreign-born child was denied citizenship or another immigration benefit in any of the above circumstances, a parent can submit a new application along with any additional evidence necessary to meet to requirements of the new regulations.
Most immigration policy was formulated long before the advent of ART and at a time when social and legal mores swayed against same-sex marriage. While there’s still a long way to go, the DOS should be applauded for taking the steps it has in bringing its citizenship policies regarding more in line with today’s technology and social norms.

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