Global Surrogacy and Citizenship

As I think I mentioned, I am at a conference in Savannah, GA.   It’s a conference of the American Academy of Adoption Attorneys (that would be AAAA) and also a subgroup of that group, the American Academy of Assisted Reproductive Technology Attorneys (AAARTA).   I’m an honorary member of the latter group, which is a wonderful thing to be as this is an amazing group of lawyers–people who are talented and also committed to doing things right. 

I listened to a program about international surrogacy today and learned something new that might be of interest to folks reading this.   The question being discussed was citizenship of children born using surrogacy in India.   

If the intended parents are US citizens, and if one or both of them provide gametes for the creation of the child, then the child can be recognized as a US citizen.    This is true even if the intended parents are not recognized as legal parents under the local law.   To put this slightly differently, the citizenship of the child does not depend on the parental status of the IPs.   It depends on the genetic link.   

You can also say the reverse–even if the intended parents are recognized as legal parents under local law, this does not make their child an US citizen.   For citizenship, the parents have to demonstrate the genetic link.   So there may be instances where gametes were used that did not come from the parents–this might be because the parents obtained third-party gametes and it might be because other gametes were mistakenly used by the clinic involved.  It matters not.   If the genetic test does not demonstrate the relationship the intended parent/gamete provider and the child, the child is not a US citizen. 

What then is the citizenship of the child?   I don’t know.   Some countries (the US is one) consider any child born in the country to be a citizen.   But not all countries do this.  If India does this, then the child is a citizen of India, but if India does not, then the child may be stateless–a citizen of no country.  

There are more complications.   If a child is conceived using gametes from an anonymous provider, then that cannot possibly be the basis for US citizenship.   But if the child is conceived using gametes from a known provider who is a US citizen, then the connection to that person might be used to establish US citizenship.   However, the citizenship needs to be established in India before the child can be brought to the US and it may be that the gamete provider needs to appear there.  (It’s also possible that paperwork can overcome this problem.)  

I’m not an expert on this aspect of the law–way far from it.   My main point here is to demonstrate that things are complicated and that it’s really important to have good legal advice before heading down this road.   But there’s also something really interesting here:  Parentage may not be determined by genetics but US citizenship is.   Citizenship is not tied to parentage–it’s tied to genetics.   For me, this is definitely in the “learn something new every day” category.  

(If case you are wondering, it’s quite clear that US citizens can adopt children overseas and the children can become US citizens.   I don’t mean to suggest that the genetic connection is necessary in all cases.)


6 responses to “Global Surrogacy and Citizenship

  1. Do you think surrogacy and adoption transfers are international trade? Or do they qualify as a service, like legal services, medical services, health insurance, etc, under GATS?

    If so, (if its a covered service) once they open, once companies invest in developing a supply chain, etc, it would be theirs by right, and nations are then obligated to keep that market open for them – forever.

    If the US exempts some brokers from taxes because they are affiliated with social services, religions, etc, that is clearly discriminatory favoritism of domestic producers and banned by the WTO.

    Not many Americans realize how important these agreements are for the profitability of American multinationals. The developing world is where the money is.

    Free trade agreements trump local laws and politics. Thats how they are designed.

  2. I don’t see how you could classify adoption as trade; that would be considered human trafficking.

  3. If Parents who are citizens of India but reside in US with Green Cards decide to go through surrogacy in India, will the child born in India be considered for US citizenship, is there a clear US law in this situation?

    • I do not know the answer, but I know enough to know that it is extremely important to know the answer to this question. Globalized surrogacy can present difficult questions of citizenship. People really need to take the time (and spend the money) to get solid answers before they set off down this path.

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