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Potential child citizenship issues with IVF or surrogacy abroad

If you want to start a family but are having trouble getting pregnant, you may be considering in vitro fertilization, surrogacy, or another form of assisted reproduction. Such procedures can be costly in the U.S., however, and it’s perfectly legal to seek such services abroad.

If you’re considering seeking assisted reproduction abroad, have you thought about whether your child would be a U.S. citizen? Most people probably assume their children would be, but that’s not quite true. In fact, the State Department has guidelines for parents considering going abroad for reproductive services.

If your child is born in the U.S. or its territories, he or she is a U.S. citizen at birth. Questions about citizenship only arise in overseas births.

Here are a few issues the State Department recommends you consider:

  • Whether children born abroad are U.S. citizens by birth is governed by a part of the Immigration and Nationality Act called the Child Citizenship Act. The State Department interprets that law as requiring a biological connection between a U.S. citizen and the child for citizenship to be conferred.
  • In surrogacy, problems can come up when parents engage surrogates to carry a child with no biological relationship to either U.S.-citizen parent. This is because, in some countries, children born to surrogates are legally considered the children of the people who contracted with her. That could mean that neither the U.S. nor the other country would consider the child a citizen by birth, making it difficult to bring your child to the United States.
  • For in vitro fertilization, the biological relationship requirement means that either the sperm or egg donor in must be a U.S. citizen for the child to be considered a U.S. citizen at birth. Furthermore, the child’s parentage must be confirmed by a DNA test.
  • Unfortunately, some foreign fertility clinics have been found to have substituted genetic material without notification when the U.S. citizen’s was discovered not to be viable. In such cases, the DNA test could also leave your child stateless.

If one of these problems arises, it does not mean your child can’t become a U.S. citizen. It only means the child did not obtain citizenship at birth, and you’ll have to go through additional legal steps.

To avoid these problems, the State Department recommends discussing your plans with a knowledgeable immigration attorney.

Source: Travel.State.Gov, "Important Information for U.S. Citizens Considering the Use of Assisted Reproductive Technology (ART) Abroad," retrieved Nov. 13, 2013

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