Birthright Citizenship in the United States
Those born with American citizenship are thought to be born with strong privileges. There are two general ways by which a person receives American citizenship at birth. The first way is simply by being born within the borders of the United States. This is a common law concept called “jus soli”, or the “law of the soil” “Jus soli” is a rarity in the modern world with the United States being one of only thirty countries which has it in place as a means for birthright citizenship. An exception is made to the American “jus soli” rule in cases of children born to certain visiting foreign diplomats. See INA 301(a) and INA 301(b). See 8 CFR 101.3.
Another general way for people to receive American citizenship at birth is to be born abroad to at least one American citizen parent, who has lived in the United States for a certain period of time. You can read more about birthright citizenship in the United States at the US Citizenship and Immigration Services website here.
“Accidental Americans” and the Tax Burdens of American Citizenship
Many people were born in the United States while their parents were in the country for brief periods of time before leaving. This leaves these people with American citizenship, even if they never consider themselves Americans. These people are often called “Accidental Americans.” These “Accidental Americans” are subject to U.S tax laws which they are often time unaware they are obliged to follow. You can read more about the tax problems that come with being an accidental American on my blog posts here and here. Renouncing one’s American citizenship is no easy task, and is getting more and more difficult with the current increase in people who are doing so.
Assisted Reproductive Technology and Citizenship
Assisted Reproductive Technology offers couples artificial means of having children. Such technology complicates the understanding of who receives American citizenship at birth. As a result, it is important for U.S citizens considering the use of Assisted Reproductive Technology abroad to first do thorough research on the subject. They must have a firm grasp of the laws regarding transmission of U.S. citizenship to children born abroad and this will often involve understanding the local laws regarding parental rights, surrogacy, contractual arrangements and the like.
Children born abroad through Assisted Reproductive Technology have birthright American citizenship only in cases where at least one of their biological parents is an American citizen. It is not enough for American citizens to be only the legal parents of a child born abroad. In the case of a foreign surrogate mother abroad carrying a fetus to gestation, either the sperm or the egg used to create the embryo must be from a U.S citizen for that citizenship to transmit to the child at birth. In order to transmit U.S. citizenship to a child conceived through Assisted Reproductive Technology (i) a U.S. citizen father must be the genetic parent or (ii) a U.S. citizen mother must be the genetic parent or (iii) a U.S. citizen mother (even though not the genetic parent) must be the gestational and legal mother of the child at the time and place of the child’s birth. A gestational mother is the woman who carries and gives birth to the child. This third category of a means granting US citizenship represents a change in US policy and was designed to address the situation when IVF babies were denied US citizenship even though their birth mother was a US citizen.
In cases of American women abroad who conceive through in vitro fertilization from donated sperm and eggs, as long as the woman is the one who carried the fetus to term, and is the legal parent of the child at birth, then she does not need to have a genetic connection to the child for that child to have American citizenship at birth. In these cases, understanding the relevant laws will be very important – for example, if a woman receives donated sperm and ova in a foreign country, what do the laws of that country provide regarding the legal status of parenthood of the child at birth?
More information on Assisted Reproductive Technology and how it relates to U.S citizenship can be found here in information supplied by the Department of State.
It is becoming more and more common for Americans to go abroad to hire women to act as surrogate mothers for their children. American laws regarding surrogacy vary from state to state, with some states such as California permitting commercial surrogacy, and other states completely forbidding any type of surrogacy. Few countries allow for commercial surrogacy. These countries include India, Thailand, Ukraine, and Mexico. India is a popular place for Americans to go for commercial surrogacy, because transnational surrogacy is encouraged by the Indian government as a means of boosting their medical tourism industry. The women who act as surrogates in India tend to be willing to perform this service at very low prices, with many of them doing so because of financial struggles. The legal problems associated with such surrogacy have been noted by the Indian legal profession.
I must stress how important it is that American citizens who go abroad for transnational surrogacy understand the laws of transmitting U.S citizenship to children. Even in cases when the surrogacy agreement has been recognized abroad, this does not exempt the need for a biological connection to an American parent. Children born abroad to foreign surrogates who are not biologically related to a U.S citizen parent often have a hard time entering the United States at later dates. There are some very unfortunate examples when (either due to error, or, purposefully due to unsuitability of genetic material) foreign fertility clinics have substituted alternate donor sperm and eggs for the U.S parents’ genetic material, leaving a child without a biological relation to his parents. This leaves a child ineligible for U.S citizenship at birth, and more dangerously can even leave the child stateless. Bear in mind that DNA tests after the child’s birth, are often mandated as part of the process of documenting the child’s citizenship for the purposes of obtaining a U.S. passport.
“Accidental Americans” and Assisted Reproductive Technology
Assisted Reproductive Technology apparently also has the potential to create “Accidental Americans.” This can happen when children are born through sperm and/or ova donated by American citizens. Due to American law, children born through these means can have American citizenship transmitted to them, whether their legal parents want them to have it or not. This can make them responsible for American tax laws as has been described above. Non-Americans should keep this in consideration when pursuing Assisted Reproductive Technology.
Of course, depending on the situation, the American citizen gene from donated eggs or sperm, can be a desired characteristic. Children conceived through Assisted Reproductive Technology will not be eligible for citizenship, however, unless it can be proven that the egg or sperm used to create the embryo was from an American citizen.
The legal status and rights of an egg or sperm donor are a very contentious area and it is difficult to find the courts agreeing on a single answer. Some US States do not address the matter by statute at all; other States have implemented legislation in order to help set boundaries and provide a legal framework for a difficult topic whose subject matter is really a new frontier in scientific advancement. Due to the volatility of this topic and with court decisions in a constant state of flux, it is very important to consult a lawyer with an expertise in this area.
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