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US citizenship now granted to babies born abroad via IVF and surrogacy

24 May 2021
Appeared in BioNews 1096

The USA will now grant citizenship to more babies born abroad via surrogacy.

A State Department policy previously meant that children born outside the USA via surrogacy were automatically considered 'out of wedlock' – meaning that they were not automatically eligible for citizenship and needed to show genetic relatedness to a US citizen parent to qualify. If the genetic parent was married to a US citizen but was not a citizen themselves the child would not be eligible.

'Children born abroad to parents, at least one of whom is a US citizen and who are married to each other at the time of the birth, will be US citizens from birth if they have a genetic or gestational tie to at least one of their parents,' said a State Department spokesperson.  

The law has not changed, but rather the State Department has decided to update the way they interpret the Immigration and Nationality Act (INA), which was introduced in 1952. Previously, the Department's interpretation required that children born abroad have a genetic or gestational relationship to a US citizen parent.

This updated interpretation and application of the INA takes into account the realities of modern families and advances in reproductive medicine. Now any child born to a married couple can be granted birthright citizenship, so long as there is a genetic or gestational tie to a US citizen or their spouse.

It comes after a series of cases for married couples, where one partner was not a US citizen, who were not able to get citizenship for their child if the citizen spouse was not the genetic parent. Although the interpretation applied to all couples, it had a disproportionate impact on same-sex male couples. 

One such case was brought by Derek Mize and Jonathan Gregg (see BioNews 1009), who told ABC News that 'no family should have to go through the anguish, stress and indignity we went through', and that they felt 'humbled that our fight, as well those forged by other families, was able to play a part in bringing about this change'.

The new rule will apply retroactively, allowing previously disentitled children to reapply. In the case of unmarried parents, however, it will remain the case that the child must be gestationally or genetically related to the US parent to be granted citizenship at birth.

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