There was a discussion in the comments of another post within the last week about how US citizenship is conferred. (I think it is in the comments on this post but they are lengthy and I cannot be sure.) This story makes me want to briefly revisit a topic I’ve discussed at least once in the past.
Generally speaking you might think that if a woman who is a US citizen gives birth while she is outside the US, then her child will be a US citizen. But this isn’t always the case. For children conceived via ART, US citizenship does not flow from legal parentage–it flows from genetics.
Let’s assume the man who provides the sperm is not a US citizen. (If he is, though, you are done, because citizenship is conferred via his genetic connection.) If the woman who gave birth did not use her own eggs then in order to know the citizenship of the child, we need to know the citizenship of the egg provider. If she was a US citizen, then the child is. If she was not a US citizen, then the child is not a US citizen either.
To be clear, it does not matter who the legal parents of the child are. Thus, the sperm provider might not be a legal parent, but if he’s a US citizenship, the child is, to0. The same is true with the two women involved. It doesn’t matter which is legally a parent.
This story, as you can see, concerns babies born in Israel. Israel is one of those ART destination countries. I’m not an expert on Israeli law–I don’t know who counts as a parent there. (I do know that there is often a premium placed on Jewish egg providers because in the view of some rabbis, only a child conceived with an egg from a Jewish woman is Jewish. That’s a different story.)
But I don’t need to know Israeli law and I don’t need to figure out state the women in the article are from and what the law is there. I suppose you could say that the US state department policy makes things simpler–it’s all and only about genetics. You need to know where the eggs and sperm came from. Of course, this does mean that consular officials have to ask some rather personal questions.
It’s interesting to think about what other systems might work better. Should the citizenship of the child depend on legal parentage? And should legal parentage then be assessed under the law of the country where the child is born? Where the parents are from? I’m not sure there’s a perfect answer out there.