US Ends Policy of Denying Citizenship to Children Born Overseas via IVF or Surrogacy
The State Department said on May 18, 2021 that it will now grant US citizenship to children born abroad to parents who used artificial reproductive technology, including surrogacy, notifying Congress and diplomatic posts of the change to longstanding policy.
The decision allows same-sex and heterosexual couples to transfer US citizenship to their baby, as long as one parent is a US citizen, the child has a genetic or gestational tie to one of the parents and they meet all other requirements of the Immigration and Nationality Act, or INA. Previous policy had dictated that the child must have a genetic or gestational tie to the US citizen parent.
State Department spokesman Ned Price said in a statement that the "updated interpretation and application of the INA takes into account the realities of modern families and advances in [artificial reproductive technology] from when the Act was first enacted in 1952."
The State Department said it could not predict the number of families who will benefit from the updated interpretation of the immigration law and did not have publicly available data on previously denied applications to have birthright citizenship recognized "due to the previous interpretation and application of the law."
The policy change, which is effective immediately, "will be retroactively applied to anyone who feels that they have a change in circumstance due to the change," according to a State Department official. That will smooth the path for a number of same-sex couples who sued the Department after their children were denied birthright citizenship because they were considered "born out of wedlock" and ineligible.
The policy on assisted reproductive technology determined that, "a child born abroad to a surrogate, whose genetic parents are a U.S. citizen father and anonymous egg donor, is considered for citizenship purposes to be a person born out of wedlock." Critics said the policy unduly targeted LGBTQ families, some of whom brought lawsuits that the Trump administration fought.
The State Department official said that the new policy doesn't require legal changes and is, instead, a reinterpretation of application of the 1952 law to reflect modern realities.
"The INA was written in 1952 and considerations about reproductive technology, and thinking about the composition of modern families, was just not something that went into the thought making of people writing that law," the official said. "So the Secretary has approved an updated application ... that is going to allow a number of married couples, most of you who are using [artificial reproductive technology] to transmit citizenship to their children, and we are excited about that."
Requirements for children born to unmarried parents remains the same, the official said. In his statement, Price said that the State Department will "remain vigilant to the risks of citizenship fraud, exploitation, and abuse."