As reported in the National Law Review, the US Citizenship and Immigration Services (USCIS) has just issued a new policy, clarifying the definition of “mother” and “parent” under the Immigration and Nationality Act, to include a gestational mother who (a) gave birth to the child and (b) was the child’s legal mother at the time of birth under the law of the jurisdiction where the child was born.
This development is a huge relief to those parents whose children, whether via a gestational carrier or an egg or sperm donor, are born overseas. No longer will they have to be concerned about being denied US citizenship for their children as was done in the past, despite the parents being US citizens themselves.
In fact, the article continues to explain the hardship previously dealt with by these parents:
U.S. law requires a U.S. citizen parent to have a biological connection to a child in order to transmit U.S. citizenship to the child at birth. In the context of ART, a father or mother must prove that they are the genetic parent of the child. This can be proved by DNA testing after the baby is born. The new policy expands the definition of “mother” to include a gestational and legal mother of the child at the time and place of the child’s birth (in addition to a genetic mother).
Until this policy was put in place, occasionally children born abroad pursuant to ART became stateless. This is because some foreign fertility clinics have on occasion substituted alternate donor sperm and eggs for the U.S. parents’ genetic material, either purposefully when the U.S. citizen’s genetic material became non-viable, or accidentally, due to errors in the lab. Tragically, sometimes the parents did not learn about these “switches” until they obtained DNA test results after the child’s birth.
Keywords: surrogate mother, surrogacy, surrogate, intended parents, surrogacy laws, surrogacy agreement, gestational surrogacy, US immigration law, USCIS, egg donor, egg donation, gestational carrier