U.S. Immigration Policy FINALLY Catches Up with Assisted Reproductive Technology

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


Vague Surrogacy Laws in the US Make Problems for Many

California is once again proving that surrogacy should only be done in a state where all parties – surrogates and intended parents – can rest assured that their surrogacy agreement will be honored. Like we have seen most recently overseas in Thailand and India, not everyone lives up to their end of the bargain. And, now that has hit the US.

In Tennessee a surrogate decided one week after birth that she wanted to keep her genetic child that she was carrying for an Italian couple. You see she was a traditional surrogate, one who was inseminated with the Intended Father’s sperm. Now after years of legal bouts in lower courts where the surrogate was denied any custody, the Tennessee Supreme Court has just ruled that she is entitled to some custody and visitation.

Unfortunately for everyone involved, the 3-year-old child lives in Italy, speaks no English and has never known her surrogate mother. According to the Tennessean:

Tennessee’s surrogacy law “lacks a clear process for persons to create, carry out, and enforce traditional surrogacy agreements,” the Supreme Court noted in its opinion. That “leaves parties to surrogacy contracts and courts ill-equipped to deal with the complex questions that inevitably arise in this area of law.”

The lack of legal guidelines has led to heartbreak.

“Certainly, it’s complicated to try at this point to establish a visitation schedule if you have a child who doesn’t speak English, has never met the surrogate but does have a biological mother whose rights have never been terminated,” said Benjamin Papa, an attorney for the Italian couple, whose identities — like the surrogate’s — remain confidential in the court’s order.

“The battle has been very hard,” Papa said. “They went through the whole surrogacy process in good faith. From their perspective, the surrogate decided she wasn’t going to live up to the bargain at the last minute. They have been very frustrated with her trying to back out of the deal everyone agreed to.”

The case is one of two recent court decisions illuminating a void in state laws guiding surrogacy contracts.

Tennessee’s lack of legal guidelines extends to gestational surrogacy, a more common surrogacy arrangement. Unlike the case of the Italian couple, who used traditional surrogacy – in which the surrogate’s own egg was fertilized by the Italian father’s sperm – gestational surrogacy involves implanting a fertilized egg into a surrogate that has no biological relationship with the woman pregnant with the baby.

Sidenote: Tennessee is one of four states that require an intended mother who uses an egg donor to wait until after the child’s birth to become the legal parent. The mother has to adopt the child. The other states are Nebraska, Louisiana and Iowa.




surrogate mother, surrogacy, surrogate, intended parents, California surrogacy, surrogacy laws, California surrogacy laws, surrogacy agreement, Baby Gammy, traditional surrogacy, gestational surrogacy

Goodbye Thailand & India – Mexico is the New Surrogacy Hotspot?

Goodbye Thailand & India – Mexico is the New Surrogacy Hotspot?

With the options for Intended Parents dwindling in Thailand and India and the cost in the US too high for many, Mexico is stepping into the void. With its beautiful weather and lax laws, specifically in Tabasco where altruistic gestational surrogacy has been legal since 1998, parents are now venturing to our southern neighbor.

Unfortunately, the laws in Mexico are not as strict as they are here in the State of California. And, according to articles in both the Guardian and Bioedge, these lack of laws and regulations make this area ripe for fraud and deception. So, what is one to do? Well, honestly, no one should ever want to create their family in a legal grey area where there is so much to risk. However, by doing your homework and meeting with a reproductive lawyer specializing in this unique area of law – and Mexico, you can work together to decrease your chances of risking it all when creating your family.


surrogacy, surrogate, gestational surrogate, reproductive lawyer, surrogacy attorney, gestational surrogacy