Assisted Reproductive Technology, Surrogacy, and U.S. Citizenship for Children Born Abroad

Assisted Reproductive Technology, Surrogacy, and U.S. Citizenship for Children Born Abroad

Legal Sidebari

Assisted Reproductive Technology, Surrogacy,
and U.S. Citizenship for Children
Born Abroad
December 10, 2020
Assisted reproductive technology (ART) and surrogacy have made parenthood possible for persons who,
for varied reasons, cannot reproduce through more traditional means. The increased use of ART and
surrogacy have raised novel legal questions throughout U.S. law. One issue concerns U.S. citizenship
eligibility for children born abroad to a U.S. citizen parent through ART or surrogacy. The Department of
State (DOS) has interpreted the Immigration and Nationality Act’s (INA’s) provisions governing
derivative citizenship to require a U.S. citizen parent to have a “biological relationship” with a child born
outside the United States. This interpretation has been successfully challenged in recent court cases
brought by same-sex couples whose child was born abroad through ART or surrogacy. At the time of this
Sidebar, DOS has opted not to appeal these decisions, leaving some uncertainty about DOS policy going
forward. This Sidebar examines the statutory framework governing derivative citizenship at birth for
persons born abroad to a U.S. citizen parent, current DOS interpretation and application of this framework
to foreign births using surrogacy or ART, and the implications of recent legal challenges.
Statutory Framework
As the Supreme Court observed more than a century ago, U.S. law recognizes “two sources of citizenship,
and two only: birth and naturalization.” The Fourteenth Amendment’s Citizenship Clause guarantees
birthright citizenship to “all persons born ... in the United States, and subject to the jurisdiction thereof.”
Those not born in the United States may still acquire citizenship “by birth” “as provided by Acts of
Congress.” Sections 301 and 309 of the INA, codified in 8 U.S.C. §§ 1401 and 1409, set forth derivative
citizenship rules for persons born abroad with at least one U.S. citizen parent. The eligibility requirements
differ depending on whether one or both parents are U.S. citizens; whether the child is born in or out of
wedlock; and whether a U.S. citizen parent has satisfied an applicable physical presence requirement.
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Children Born Abroad to Married Parents
Section 301 prescribes U.S. citizenship requirements for children born abroad to married parents (i.e., in
wedlock):
 A child born abroad to parents who are both U.S. citizens, with at least one parent who
“has had a residence in the United States” before the child’s birth, is entitled to U.S.
citizenship under Section 301(c).
 Under Section 301(d), a U.S. citizen parent and a U.S. national who is not a U.S. citizen
(a narrow category that mostly consists of persons born in American Samoa) may
transmit U.S. citizenship to a child born abroad if the U.S. citizen parent resided for a
continuous period of one year in the United States before the birth of the child.
 A child is entitled to U.S. citizenship at birth under Section 301(g) if the child is born
abroad to a foreign national and a U.S. citizen who has satisfied Section 301(g)’s physical
presence requirement.
Section 301(g)’s physical presence requirement is the most stringent of Section 301, requiring the U.S.
citizen parent to have been physically present in the United States for at least five years with at least two
of those years after the U.S. citizen parent turned 14 years old. Of special note, under subsection (g), a
child born abroad may be eligible for citizenship at birth in certain situations involving a U.S. citizen
parent who is serving in the military or is employed by the U.S. government or certain international
organizations but has not yet satisfied the five-year physical presence requirement.
Children Born Abroad “Out of Wedlock”
Section 309 governs U.S. citizenship eligibility for children born “out of wedlock” with differing
requirements depending on the sex of the citizen parent.
If a child is born out of wedlock to a U.S. citizen father, Section 309(a) requires
 a blood relationship between the child and father established by clear and convincing
evidence;
 the father must be a citizen at the time of the child’s birth;
 the father (unless deceased) must agree, in writing, to provide financial support for the
child until the age of 18; and
 before the child turns 18, either the child must be legitimated under the law of the child’s
residence or domicile, the father must acknowledge paternity of the child in writing under
oath, or the paternity of the child is established by adjudication of a competent court.
If these criteria are met, Section 309(a) also requires the father to satisfy Section 301(g)’s five-year
physical presence requirement described above.
Under Section 309(c), a child born abroad to a U.S. citizen mother out of wedlock is entitled to U.S.
citizenship at birth. Although the statute provides that the mother must have physically resided in the
United States for at least one year before the birth of the child, the Supreme Court held in the 2017
decision Sessions v. Morales-Santana that the gender-based distinction in Section 309 violates equal
protection guarantees. As a result, fathers and mothers must satisfy the five-year physical presence
requirement to transmit U.S. citizenship to a child born abroad under Section 309.

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Foreign Affairs Manual Guidelines
Under its delegated authority to enforce the INA’s provisions on citizenship transmission for children
born abroad, DOS has set forth implementing guidelines in the Foreign Affairs Manual (FAM). The
governing INA provisions do not explicitly define “parent” for purposes of derivative citizenship,
arguably leaving ambiguity in how to interpret those provisions. Through the FAM, DOS has interpreted
the INA’s framework to require a child born abroad to share a biological relationship, or “blood
relationship,” to a U.S. citizen parent. The FAM contemplates a biological relationship to mean, in the
case of a father, a genetic relationship to the child; and, in the case of a mother, either a genetic
relationship (i.e., the woman whose egg was used in conception) or a gestational relationship (i.e., the
woman who carried and delivered the baby). The FAM has interpreted the term “birth in wedlock” to
mean “birth during the marriage of the biological parents to each other.” This denotes that, under the
FAM’s interpretation, a child conceived using donated sperm or eggs will be born out of wedlock even if
the child’s intended parents are married, and the claim of citizenship will therefore be adjudicated as “out
of wedlock” under Section 309. (There is an exception to this general principle in the FAM; a child born
to lesbian parents—one of whom supplied the egg and the other who carried the child—is considered
born in wedlock.)
As described below, the FAM also includes specific guidance for certain situations involving ART and
surrogacy.
Children Born Abroad to a U.S. Citizen Gestational Mother
The FAM deems a gestational relationship (i.e., when a mother carries and delivers a child) to constitute a
“biological relationship” for U.S. citizenship transmission. Under 8 FAM 304.3-1, a child born abroad to
a married U.S. citizen gestational mother who is the legal parent at the time of the child’s birth—though
not the genetic mother—is generally eligible for U.S. citizenship at birth under the conditions set forth in
Section 301(c), which addresses citizenship transmission by married U.S. citizen parents. For instance, a
child conceived through ART using the citizen father’s sperm and an egg donation and carried by the
citizen mother may be eligible for U.S. citizenship under Section 301(c) (notably, one parent would have
to satisfy Section 301(c)’s physical presence requirement, meaning that one U.S. citizen parent must have
resided in the United States before the child’s birth). A child born abroad to a nongenetic gestational U.S.
citizen mother and her foreign national husband is a child born in wedlock for purposes of Section 301(g).
And 8 FAM 304.3-1(b) explicitly provides that, in cases involving a married female same-sex couple, a
child conceived using the eggs of one parent but is carried by the other parent is eligible for U.S.
citizenship under Section 301(c). In contrast, Section 309, the provision governing out of wedlock
citizenship eligibility, controls when a child is born abroad to a U.S. citizen gestational mother who is not
married to the genetic mother or father.
Children Born Abroad Through Surrogacy
As defined in the FAM, “surrogate” means “a woman who gives birth to a child, who is not the legal
parent of the child at the time of birth in the location of birth.” The surrogate’s citizenship is not relevant
to the child’s U.S. citizenship eligibility. When a child is born abroad through surrogacy, 8 FAM 304.3-2
categorizes birth arrangements through surrogacies as either (1) in wedlock, in which case Section 301
applies or (2) out of wedlock, in which case Section 309 governs.
In Wedlock: Under the FAM, a child born abroad through surrogacy with “the genetic issue of a U.S.
citizen mother and/or U.S. citizen father” is born in wedlock for U.S. citizenship purposes if the genetic
parents are U.S. citizen spouses or if the genetic parents are a U.S. citizen and a non-U.S. citizen spouse.

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Out of Wedlock: The FAM classifies a child born abroad through surrogacy as out of wedlock for U.S.
citizenship purposes in several situations, including when the intended parents are married but the child is
only genetically related to one of the intended parents. Under the FAM, a child is born out of wedlock if
 the genetic parents are a U.S. citizen mother and anonymous sperm donor regardless of
whether the woman is married and regardless of whether her spouse is the legal parent of
the child at the time of birth (adjudicated under Section 309(c), which governs citizenship
transmission by a U.S. citizen mother out of wedlock);
 the genetic parents are a U.S. citizen father and anonymous egg donor regardless of
whether the man is married and regardless of whether his spouse is the legal parent of the
child at the time of birth (adjudicated under Section 309(a), which governs citizenship
transmission by a U.S. citizen father out of wedlock); or
 the genetic parents are a U.S. citizen father and a surrogate who is not married to the U.S.
citizen father. Despite the genetic and gestational connection, the surrogate mother is not
the legal parent of the child at the time of birth, usually pursuant to a surrogacy
agreement (adjudicated under Section 309(a)).
Challenges to Derivative Citizenship Determinations in
Cases Involving ART or Surrogacy
The FAM interpretation of the INA’s derivative citizenship statutory provisions may have implications
for a U.S. citizen who pursues the use of ART or surrogacy abroad to conceive a child. Some observers
have criticized the FAM guidelines—particularly the biological requirement—as disproportionately
affecting married same-sex couples. Several married couples with children born abroad through surrogacy
or ART have brought suit, arguing the FAM guidelines on ART and surrogacy contravene the INA.
Claims of citizenship for children born abroad through ART raise novel legal questions not yet addressed
by the Supreme Court. At least two federal courts of appeals, however, have considered the
appropriateness of the FAM guidelines’ requirement of a biological connection between a U.S. person and
child conceived abroad, though neither opinion directly dealt with ART or surrogacy. In the 2000 case
Scales v. INS, the Ninth Circuit considered whether a plaintiff born in the Philippines was eligible for
derivative citizenship. The plaintiff’s mother was a citizen of the Philippines and married to a U.S. citizen
at the time of his birth, and the couple raised the child as their son even though the U.S. citizen father
acknowledged that he was not the biological father. The Ninth Circuit ruled that the plaintiff fell within
Section 301’s scope because he was “born ... of parents one of whom is an alien, and the other a citizen of
the United States.” The court reasoned that a “straightforward reading of [INA § 301] indicates ... that
there is no requirement of a blood relationship.” In another decision, Solis-Espinoza v. Gonzales, the
Ninth Circuit likewise concluded that Section 301 does not require a blood relationship. And in the 2018
case Jaen v. Sessions, the Second Circuit held that the plaintiff was born in wedlock and a citizen at birth
under Section 301(g) even absent a biological relationship with his U.S. citizen father. There, the plaintiff
had been born in Panama to a Panamanian mother who was married to a U.S. citizen listed as the father
on the birth certificate. The court observed the statute did not define “parent” and had therefore
“incorporated the longstanding presumption of parentage based on marriage.” Although these circuit court
decisions do not involve ART or surrogacy, they interpret Section 301 as not requiring a biological
relationship between the child and the relevant U.S. citizen parent.
A handful of district courts have ruled that a child born abroad through ART or surrogacy may be granted
citizenship at birth under the INA absent a biological relationship between a qualifying U.S. citizen parent
and child. In Dvash-Banks v. Pompeo, a federal district court held that a child born abroad to a married
same-sex couple—one a U.S. citizen and the other a foreign national—through surrogacy using a donor

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egg and sperm from the non-U.S. citizen spouse qualified for U.S. citizenship under Section 301(g).
Based on the INA’s text, the district court declined to consider the child born out of wedlock, instead
reasoning that Section 301 applied. The district court explained that “Section 301 does not require a
person born during their parents’ marriage to demonstrate a biological relationship with both of their
married parents.” The Ninth Circuit affirmed on appeal, pointing to Scales and Solis-Espinoza.
Another district court recently ruled that a child born abroad through surrogacy received U.S. citizenship
at birth. In Kiviti v. Pompeo, the U.S. citizen plaintiffs—a married same-sex couple—argued their child
should be treated as a child born in wedlock abroad to U.S. citizen parents under Section 301(c), not
Section 309(a) as applied by DOS. Although both parents were U.S. citizens, only the nongenetic parent
satisfied the five-year physical presence requirement for transmitting U.S. citizenship to a child born
abroad out of wedlock. The court ruled that Section 301(c) applied. The court observed that Section
301(c) does not contain an explicit biological requirement. In October 2020, the government withdrew its
appeal in the Fourth Circuit.
In Mize v. Pompeo, a case involving a same-sex married couple who used one spouse’s sperm and a
foreign gestational surrogate to conceive a child, the district court reasoned that Section 301(c) did not
require a biological relationship. As in Kiviti, both spouses were U.S. citizens, but only the nongenetic
spouse satisfied the residency requirement to confer U.S. citizenship. The court’s interpretation was
informed by the doctrine of constitutional avoidance, which provides that, “if an otherwise acceptable
construction of a statute would raise serious constitutional problems, and where an alternative
interpretation of the statue is fairly possible, [courts] are obligated to construe the statute to avoid such
problems.” The court held that a child born abroad was entitled to U.S. citizenship under Section 301(c)
because (1) the statute does not expressly require a biological requirement for parentage and (2) reading
in a biological requirement may raise constitutional considerations related to the right of marriage by
same-sex couples on the same terms and conditions as opposite-sex couples and its accompanying
“material benefits.” The government has declined to appeal this decision.
Although courts have generally ruled on these cases on statutory grounds, plaintiffs have raised
alternative arguments that the denial of U.S. citizenship for their child born abroad violates principles of
due process and equal protection under the Fifth Amendment. For instance, the Kiviti plaintiffs claimed
that the denial of citizenship to their child “infringed on the substantive due process rights under the Fifth
Amendment to the Constitution of the Kivitis to marry, procreate, and raise their children,” and that the
denial discriminated against the plaintiffs as a same-sex couple and against their child based on the
circumstances of her birth and parentage in violation of equal protection principles. These types of
constitutional claims rely heavily on the Supreme Court’s ruling in Obergefell v. Hodges, which struck
down state bans on same-sex marriages on the ground that restricting marriage to a union between one
man and woman violated the fundamental right to marry under the Fourteenth Amendment. Following
Obergefell, plaintiffs in Pavan v. Smith—two married same-sex couples who conceived children using
anonymous sperm donations—challenged the constitutionality of an Arkansas statute that required the
mother’s husband to be listed on the birth certificate regardless of a biological relationship, but did not do
the same for a mother’s wife. The Supreme Court ruled that the differential treatment violated
Obergefell’s mandate to provide same-sex couples “the constellation of benefits that the States have
linked to marriage.” Pavan supports the notion that the right to marry includes protection from differential
treatment in terms of the benefits associated with marriage.
Still, there may be colorable arguments that the DOS interpretation of the INA’s derivative citizenship
framework does not implicate due process and equal protection principles. For instance, DOS policy
arguably treats both same-sex and opposite-sex couples alike in requiring both a legal relationship and a
biological relationship with a U.S. citizen parent, regardless of the gender or sexual orientation of the U.S.
citizen parent. Additionally, it might be argued that distinctions in derivative citizenship rules’ application
to children produced through surrogacy and ART, as compared to those produced through traditional

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means, withstand constitutional scrutiny. While the Supreme Court in Morales-Santana recognized that
one type of gender-based distinction made under derivative citizenship laws violated equal protection
requirements (there, a provision establishing lesser length-of-U.S.-residency requirements for U.S. citizen
mothers than U.S. citizen fathers), other distinctions have been upheld by the Supreme Court or lower
courts as adequately justified. These include, for instance, different derivative citizenship rules for
children produced in and out of wedlock, and special “legitimation” requirements for U.S. citizen fathers
who sire children out of wedlock that do not apply to U.S. citizen mothers. Somewhat relatedly, a few
appellate courts have rejected arguments that derivative citizenship rules confer citizenship at birth to
adopted children or step children of U.S. parents in the same way as they apply to those parents’
biological offspring, but most (though not all) of these cases did not involve equal protection challenges
to the governing statutes.
To date, no appellate court has definitively ruled on whether or how various constitutional considerations
may inform derivative citizenship rules’ application to children produced abroad through surrogacy or
ART. As mentioned above, two district courts concluded that there were reasonable, and perhaps even
compelling, constitutional arguments raised against such distinctions, but these considerations have not
been conclusively resolved by the courts.
Considerations for Congress
Congress has broad power to establish rules for U.S. citizenship and has exercised this authority to
establish a complex framework for children born abroad to a U.S. citizen parent. Congress may opt to use
its legislative authority to amend or further clarify the circumstances when children produced through
ART or surrogacy abroad are eligible for U.S. citizenship at birth. One such possibility is passing
legislation that clarifies whether a biological relationship is required for U.S. citizenship eligibility. Still,
there are some constitutional limits to this discretion. The Supreme Court recognized in Sessions v.
Morales-Santana that some distinctions based on the gender of the U.S. parent were invalid on equal
protection grounds, though other distinctions remain permissible. Whether similar equal protection
arguments might be deemed persuasive with respect to parents of children produced abroad through ART
or surrogacy—particularly by same-sex couples—remains unclear, as courts have decided such disputes
on statutory grounds thus far.

Author Information

Kelsey Y. Santamaria

Legislative Attorney

Disclaimer
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