Hello doctor, just wanted to make sure whether my baby boy or girl will be granted the US citizenship if I pursue surrogacy abroad. I’ve been reading various sites and couldn’t find clear information, because I don’t know to what extent the parents must or should be biologically related to the child or not. Do you know what I mean? Pls, help.05/11/2016 at 11:14 pm
The transmission of U.S. citizenship at birth is governed by the INA (Immigration and Nationality Act), Sections 301 and/or 309. According to the INA, for the Department of State to consider a U.S. citizen parent of the child born by surrogacy, s/he is required to have a biological connection in order to to the child to transmit U.S. citizenship to the child at birth.
To sum up, in order to transmit U.S. citizenship to a baby conceived through assisted conception, a U.S. citizen father or mother must be the genetic parent. In the case of the U.S. citizen mother, she must be either the genetic or the gestational and legal mother of the child at the time and place of birth. Please, keep in mind that by “gestational mother” we mean the woman who bears the pregnancy and gives birth to the child.
In any case, the determination of citizenship of children born abroad is the responsibility of the U.S. Department of State, and is governed by the U.S. legal framework. Taking this into account, you should be aware of the fact that even if local law recognized a surrogacy agreement and found that U.S. parents are the legal parents of a child conceived through assisted reproductive technology, if the U.S. citizen parents are not the biological parents of the child, the child wouldn’t be considered as a U.S. citizen at birth.
The Department is clear on this matter and states they cannot “pre-adjudicate” a citizenship determination; for this reason, in many cases involving surrogacy or any other assisted reproduction technique, the parents are required to undergo DNA testing as a way of proving their biological connection to the child born to a foreign surrogate.
The Department is also clear on the fact that children born abroad to foreign surrogates, and are not related to a U.S. citizen parent, can have trouble entering the United States of America, as he/she will not acquire U.S. citizenship automatically at birth.
I hope I have been able to help,
Best regards05/12/2016 at 8:34 am