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ART (Assisted Reproductive Technology) and Immigration

On August 5, 2021, the United States Citizenship and Immigration Services (USCIS) announced an updated interpretation to existing immigration law that will allow children born abroad using assisted reproductive technology (ART), such as surrogacy or in vitro fertilization, to qualify for U.S. citizenship and green cards.

This change is similar to one announced by the U.S. Department of State in May 2021, which provided that “[c]hildren born abroad to parents, at least one of whom is a U.S. citizen and who are married to each other at the time of the birth, will be U.S. citizens from birth if they have a genetic or gestational tie to at least one of their parents and meet the INA’s other requirements.” This effectively allows marriage between a U.S. citizen and non-citizen to be a sufficient connection between the child and their U.S. citizen parent for the purposes of the child’s U.S. citizenship, even if the U.S. citizen parent is not genetically or gestationally connected to the child. 

Prior to these changes, children born abroad were required to have a genetic or gestational relationship to a U.S. citizen parent in order to qualify for U.S. citizenship. The updated interpretation of the Immigration and Nationality Act (INA) now allows a non-genetic, non-gestational legal parent of a child born through ART outside of the United States to transmit U.S. citizenship to the child under certain circumstances. 

This article discusses these recent changes and what they mean for families with children born using ART.

What is Assisted Reproductive Technology (ART)? 

The USCIS defines ART as fertility treatments where either the egg or sperm, or both, is handled outside the body. This can include intrauterine insemination and in vitro fertilization, among other procedures. ART procedures involve the parent or parents’ use of their own genetic material or donated genetic material in order to conceive a child. Thus, ART allows a gestational parent to have a child without having a genetic relationship with the child, due to the use of a donor egg. For the purposes of U.S. citizenship passed on at birth, some ART procedures involve a genetic or gestational relationship between the parent(s) and child, while others do not, despite being the legal parent(s) of the child.

How Does ART Impact Immigration Law? 

Under the INA, U.S. citizens may transmit citizenship to their children who are born outside of the United States. Whether or not a U.S. citizen parent or parents can transmit citizenship to their children depends on whether certain criteria are met, including the parent(s) length or residency in the U.S. and whether the child was born in wedlock or out of wedlock.

Under the wedlock requirement, the USCIS and State Department previously required that the child’s legal parents be married to one another for a child to be considered born in wedlock. As part of this old requirement, legal parents must either be:

  1. Both genetic parents; or 
  2. One parent is the legal gestational parent and one is a genetic parent to the child.

Given that ART is often used by same-sex parents, and through surrogacy, it has been difficult for certain parents to claim that each parent is either a genetic parent or a gestational parent. Under this old interpretation, many parents were recognized by the jurisdiction in which they live as the legal and only parents of a child born through ART, yet were not recognized as the child’s parents for immigration purposes. 

Now, the USCIS considers a child to be born in wedlock when the child’s legal parents are married to one another at the time of birth and at least one of the legal parents has a genetic or gestational relationship to the child. This new interpretation of the INA is helpful for parents who are married but only one parent is genetically or gestationally connected to the child, despite both parents being legal parents to the child. 

Requirements for U.S. Citizenship and ART 

The USCIS’ and State Department’s new interpretation of the INA provides more parents the ability to have their children recognized as U.S. citizens. Here is how the new interpretation fits into the requirements for a child born abroad using ART. 

U.S. Citizenship and Birth Abroad

Generally, children who are born outside of the United States may acquire U.S. citizenship at the time of their birth, if: 

  • They are children of a U.S. citizen parent or parents; 
  • The U.S. citizen parent meets residence or physical presence requirements in the United States or an outlying possession before their child’s birth; and 
  • The children meet other requirements of the INA.

The Wedlock Requirement

Children are not automatically U.S. citizens if born to a U.S. citizen parent or parents. Instead, the children must have been born “in wedlock,” which refers to a marital commitment between the children’s parents.

In order to be deemed “in wedlock,” the children’s parents must have been legally married to each other at the time of their child’s conception or birth, or within 300 days of the end of the marriage by death or divorce. 

It is possible for a child born to a U.S. citizen father or mother out of wedlock to become a U.S. citizen; however, wedlock is required for parents who are not related to their child genetically or gestationally, including children born from ART. 

The Genetic or Gestation Requirement

Along with the wedlock requirement, one of the legal parents to the children must be related to the child by genetics or gestation. Instead of requiring both parents to be either genetically or gestationally related to the child, the new interpretation of this requirement permits children to be genetically or gestationally related to one U.S. citizen parent or to one non-U.S. citizen parent who is married to a U.S. citizen parent at the time of the child’s birth. 

In sum, there are three situations where a parent or parents can pass on U.S. citizenship to their child under the genetic or gestation requirement: 

  • A U.S. citizen father is the genetic father of the child; 
  • A U.S. citizen mother is the genetic or the gestational and legal mother of the child; 
  • A U.S. citizen parent is not genetically or gestationally related to the child, but is married to a parent who has a genetic or gestational connection to the child.

The Residency/Physical Presence Requirement

In order for a child born abroad to be deemed a U.S. citizen, his or her parents must meet U.S. residency and physical presence requirements. These requirements vary depending on whether both parents are U.S. citizens or not: 

  • Both parents are U.S. citizens
    • At least one parent has resided in the United States or one of its outlying possessions; 
  • One parent is a U.S. citizen and the other parent is a U.S. noncitizen national 
    • The U.S. citizen parent was physically present in the U.S. or one of its outlying possessions for a continuous period of at least 1 year; 
  • One parent is a U.S. citizen and the other parent is a noncitizen and is not a U.S. national; 
    • The U.S. citizen parent was physically present in the United States for at least 5 years, including at least 2 years after 14 years of age. 

The Impact on ART 

The marital requirements along with the gestational and genetic requirements have had an outsized impact on parents who rely on ART to have children. This includes parents who are same-sex couples and other couples who need ART to reproduce, including through surrogacy or other methods of reproduction. Couples who require ART to have children will often rely on the genetic or gestational contributions of only one spouse, which leaves the other spouse without a genetic or gestational nexus to the child as previously required by law, despite being their legal parent. 

The new changes introduced by the USCIS and the State Department provides children born from ART a fairer opportunity to be deemed U.S. citizens, in-line with the opportunities provided to children not born from ART. 

What This New Interpretation Does Not Do

While the new interpretation by the USCIS and State Department will help countless families obtain citizenship for their children, the rule change does not make citizenship accessible to all children born from a couple where one parent is a U.S. citizen. 

For instance, this new interpretation does not: 

  • Help same-sex couples who cannot get married in order to satisfy the wedlock requirement; 
  • Apply to cases of adoption or surrogacy where no legal parent is genetically or gestationally related to the child; 
  • Apply to marriages between: 
    • A legal genetic and gestational mother and Non-legal mother or father;
    • A legal genetic and non-gestational mother and a non-genetic and non-legal mother or father;
    • A legal gestational mother and a non-genetic and non-legal mother or father;
    • A legal genetic father and a non-genetic, non-gestational, and non-legal mother or father;
    • A legal non-genetic mother or father and legal non-genetic mother or father

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Sweta Khandelwal

Sweta completed her Masters in Law from the University of California, Los Angeles and her JD from the Faculty of Law, Delhi University in India and has been practicing law for 15+ years getting visas, green cards, and citizenship for 1000+ clients, 100+ companies across 50+ nationalities.

Sweta has been recognized as a ” Super Lawyer, Rising Star,” and as amongst the ” Top 40 under 40″ immigration attorneys in California (American Society of Legal Advocates). She is also the recipient of the Advocacy Award by the American Immigration Lawyers Association.

Sweta is also a chartered accountant — the equivalent of a CPA. This makes her uniquely positioned to understand the immigration needs of her business clients in the broader context of their corporate objectives.

Sweta is actively involved with immigration issues and immigrant communities in various capacities. She has assumed key roles at the American Immigration Lawyers Association (AILA), both at the local and national level. She has been a past chair at the Santa Clara Valley Chapter at AILA and has also been involved in various practice area committees at AILA National. Sweta has addressed multiple conferences/forums in the United States and worldwide on immigration and business issues.

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