Citizenship of Children Born Through Surrogacy Abroad

Written by Carmen Villamor

John and Richard are a same sex couple, legally married in California. Both are U.S. citizens and desirous of having a child. They have a friend, Padmini, who lives in Bangalore, India and is willing to serve as a surrogate mother. John and Richard arranged for Padmini to carry their child to term. John’s sperm was used to fertilize the ova of an anonymous donor in vitro, and the fertilized egg was then implanted into Padmini’s uterus. Padmini successfully gave birth to a beautiful baby girl, Emma, in Bangalore, India on August 5, 2015.

John and Richard could not have been happier. They wanted to bring Emma home and so they immediately went to the U.S. Embassy to get her passport. But they found out that the U.S. State Department did not share their joy. They were told Emma is not eligible for a passport unless they can prove that the egg or sperm used to create the embryo was from an American citizen. John recalls being in a crowded hall when the embassy staffer asked him over a speaker from behind a glass partition, "Is this child even yours?". 

How do you document the child’s U.S. citizenship and get a passport?

Immigration laws on children born from surrogacy and artificial reproductive technology (ART) abroad exist for a very good reason: to avoid having people claim that other people's kids are their own for purposes of obtaining U.S. citizenship. 

In its simplest terms, with surrogacy and ART, a child’s citizenship is determined by the biological origin of the egg and the sperm. The general rule is that at least one biological parent must be a U.S. citizen when the child is born in order for the child to be a citizen as well.

Anyone considering entering into a surrogacy arrangement outside the U.S. must exercise extreme caution. They should make sure they are well informed of the U.S. requirements for registering such a child as a U.S. citizen, and should ensure they are aware of the legal status of surrogacy in the country in which the arrangement is to occur. 

Assume for example that in the child’s country of birth, the woman who gives birth to a child is considered the legal mother of the child. The intended parents would either need to get the surrogate mother to sign the child’s passport application or would need to present evidence that the father has the right to sign the passport application without the legal mother’s consent.

As the above story demonstrates, parents planning on using surrogacy or ART to have a baby abroad must think carefully about whether and how they will be able to return back to the United States with their child. They must be aware of the citizenship consequences of the particular circumstances of their child’s birth and also their ability to get travel documents.

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