Quick (Clarifying?) Update on Citizenship

Okay, so one should always read all the way to the end, right?  And I didn’t (because I was rushing, which is an explanation but not an excuse.)

The provision discussed in the previous post would, it seems to me, help a married man/woman where 1) both are US citizens and 2) the man is the genetic father and 3) the woman is either the genetic mother OR both the gestational and the legal mother.   Essentially I think that means instances where a couple uses a donor egg, the husband’s sperm and the wife gestates/gives birth.

But if you look further down in the full notice you’ll see this language:

If the child is biologically related to a U.S. citizen mother, but not her spouse, the case would be treated as a birth out of wedlock to a U.S. citizen
mother, and would have to meet the requirements of INA 309(c).

According to the referenced section an “out of wedlock mother” can only transmit citizenship by being genetically related.

I didn’t really mean to get into the intricacies of immigration law with the last post.    That’s a specialty area I don’t know a lot about.  I just wanted to flag the new use of “biologically related” that cropped up.   Should have left it there.


32 responses to “Quick (Clarifying?) Update on Citizenship

  1. Julie,

    Sigh – in which I become ridiculous and comment. Such a wonderful, tempting blog! And citizenship is my special interest.

    Is this a recent change by the State Department? I had heard they were “evaluating” the policy, but had not noticed that they had changed it.

    If so, it should help a bit with potential problems of statelessness and citizenship transmission. But I am also unclear on the language. It may not allow for the citizenship transmission double donor situations.

    I had noticed the case of Elli Lavi (duel US/ Israel citizen, hometown of Chicago) who could not transmit American citizenship to her twin girls because she gave birth in Israel. She was asked at the U.S. Embassy if she used donor egg when she applied for passports/citizenship recognition. Would this change permit her children to claim American citizenship?

    • So according to that, the location of conception is all-important; it’s not even the citizenship of egg or sperm donors that matters. One could, after all, use an illegal immigrant living in the US (or just a tourist visiting the US) as an egg or sperm to conceive a child there, be pregnant there, and give birth there. In that case, there would be no citizenship issues.

      Is it fair to say that this discriminates against people who seek medical treatment abroad, whether it is because they actually live abroad or because they travel for financial reasons?

      • Technically, it would be the child who loses a claim to American citizenship.

        And, as I understand it, there is no legal remedy via adoption for situations in which the child is recognized as the legal child.

      • I do not think the location of conception matters. It’s where the birth takes place. If a child is born in the US, the child is a US citizen–with no further inquiry. Not all countries do this, but the US does. The provisions here are for children born abroad.

        I think it is hard to say that it discriminates against those who seek medical treatment abroad–because it doesn’t turn on where the medical treatment is, but rather where the birth is. It does discriminate based on where you give birth–different rules if you give birth in the US or outside of it. But I’m fairly sure all courts will say that this sort of discrimination is unproblematic. If you have a rule that all children born in the US are US citizens, then you clearly have to have some other rule for children not born in the US.

        As I recall there have been challenges because children with US citizen mothers are treated differently than children with US citizen fathers. (And here I’m not referring to cases with any ART.) The Supreme Court found this differential treatment to be OK, as I recall.

        • Many thanks for the explanation! I wonder what caused the internal state department change? Would love to see an article or any background information if you happen to run across anything.

          I was also a bit confused if this change applied to a double-donor situation with an American citizenship gestational mother living as an ex-pat?

          “As I recall there have been challenges because children with US citizen mothers are treated differently than children with US citizen fathers.”

          Here’s a interesting summary of the recent history in which unwed US citizen mothers are treated differently then unwed US citizen fathers:

          Also – “Which babies born outside the U.S. count as Americans from birth? And which men and women can bestow U.S. citizenship, automatically, upon their children? “http://www.common-place.org/vol-02/no-04/roundtable/kerber.shtml

          On the differential procedures imposed on a child of a unwed male US citizen who was born outside of the United States:

          http://www.dissentmagazine.org/online_articles/sex-and-citizenship-at-the-court-again Kristen Collins wrote an amicus brief for _Flores-Villar v. United States_.

          • I’m not an expert (that’s my disclaimer), but it seems to me that it would apply to a double donor situation and there would be citizenship as long as the woman who gives birth is a US citizen, is married, and is the legal parent under the law of the place where the child is born. (I think that’s what it means, anyway). But really–I’m just reading it–not bringing expertise to bear. For anyone who actually needs to rely on this, PLEASE DO CONSULT A LAWYER WHO KNOWS WHAT SHE/HE IS DOING.

  2. oh i didn’t realize the extra section that a gestatinal mother actually can not transmit citizenship.

  3. The State department may have changed the citizenship transmission rules on gestating American citizens abroad with the new language.

    But it is unclear to me when the changes were made, and the extent to which State is changing its policy. If there are any links to legal commentary, I would be interested.

    This is an article from April 2012 by Joanna Grossman that explains the situation as of last year. But if the language is new, it may be outdated. http://verdict.justia.com/2012/04/03/flag-waving-gametes?ref=tumblr

  4. By calling donor conception what it really is, adoption fraud, the State Department calls it like it really is. The intent may be to prevent calling children of people from other countries U.S. Citizens, but by labeling it adoption fraud they are preventing the trafficking of black market adopted people into the U.S. which protects people from being trafficked and black market adopted. People who sell their children don’t generally intend to be parents and of course they’d have to collude prior to the birth of the child in order to name unrelated individuals as parents. That is the whole donor agreement. I’d like to see the term adoption fraud applied to the practice broadly so it would protect U.S. born individuals from being black market adopted as well.

    • Yeah, it’s good to see them call it adoption fraud. But I can’t believe you can simultaneously think we should apply the term adoption fraud to donor conception and yet still say it should be legal. Fraud isn’t something that is ever legal, I don’t think. I mean people openly sell copies of famous paintings, but no one sells forgeries, you know what I mean? Fraud and legal are incompatible categories.

      • Oh John don’t you see the importance of dealing with it only after a person is born? Because that is when their rights get violated. Before then its all just people freely conceiving with their right to privacy. It’s what we expect people to do when they have offspring that is critical. Removing the exemption from parental responsibility for gamete donors would pretty much put an end to the practice because they’d be having to be responsible as parents. But we don’t want to restrict people from their reproductive freedom – mate with whomever you’d like but take responsibility for the children you create with them, whether they are your spouse or not and whether they happen to be married or partnered with someone who’d like to pretend to be the other parent. By allowing the exemption from responsibility it leaves people sometimes with only one recorded parent, or worse with the wrong recorded parent.

      • You are correct! So why is it illegal according to the state department but legal according to the UPA? The state department is preventing human rights violations of trafficking by outing adoption fraud, black market adoptions and the UPA is just concerned with making sure the tax payers are not footing the bill to feed all the little trafficked black market adopted people. It’s f’d up. We need to resolve the discrepancy in favor of preventing human rights violations.

    • As soon as I posted I realized how you reconcile it: It would stop being adoption fraud if we legally recognized the people who are reproducing as the parents on the birth certificate and then went through a standard adoption to make the intended parents the legal parents. That would preserve the identity of the child. But I still think it is baby selling, and shouldn’t be legal.

      • Your correct! Making them go through the adoption process would out and expose the contractual nature of the exchange and hopefully the adoption to the people who’d paid would not go through. There is no reason why most of these donors could not be taking care of their offspring – there is nothing wrong with them and they have good jobs. We just want donors thinking like the rest of the population when they reproduce so that there is no baby selling going on at all. The only people available for adoption should be those whose parents truly are incapable of taking care of them after all else failed with trying to find family members to care for them. There should be no surrogacy agreements where people are contracting out their own damned offspring it all needs to end. But we will never succeed if we allow the conversation to focus on restricting conception. People will restrict their own behavior when they know the consequences of their actions won’t have the pay off they want. If people knew they’d have to actually raise the kid with the donor as the other parent, they’d either do it which is fine because who cares how parents meet eachother? Or they’d not do it because they are married and would find the donor’s presence in their lives to be intrusive. They’d adopt an available child instead.

        • We also have to stop worrying about what people are going to do if they can’t be parents. It’s not a problem that needs solving other than medically. Sometimes Greg talks about the quality of adoptable children and that making donors responsible as parents would limit the options for infertile people and same sex couples. Well they won’t be able to custom order their half orphan if that’s what he means. You won’t be able to order up the abandoned child of an ivy league abacrombie and fitch model boo hoo.

          • Yeah that’s right don’t worry about us just let us be outcasted. Let us subsidize your child’s education, take on the bulk of the workload in the work place and live lonely lives. But maybe we can have you fertiles subsidize our therapy bills and medication from the depression that being childless by circumstance causes. Maybe you can subsidize caring for us in our old age because we don’t have a family to care for us. It’s the least you could do for our service to you.

            • OK Greg so what is it that you think the infertile community is owed? Do you think infertile people are entitled to be able to purchase and own other people’s reproductive cells and along with their cells also own their reproductive freedom? Do you think buying someones cells and reproductive freedom should then mean you’d own that person’s offspring?

              The fact that people buy other people’s genes does not make them their genes nor does it make the children born their children. They are still someone else’s offspring and I fail to see how protecting their offspring’s human rights is such a big threat to the infertile community. Do you think the infertile community is so special they deserve to walk all over the human rights of minor offspring of gamete donors?

              Everyone has their very own set of reproductive rights that they themselves get to exercise and their very own set of parental obligations if they themselves wind up with offspring. If a person has no offspring they have no parental obligations. If they are unable to reproduce it does not mean that they then get to reproduce other people.

      • Yes, because non biological parents are bad and god forbid those that wish to have children who aren’t able to don’t live by the book of John Howard society would crumble.

    • I hesitate to get into this but can you specifically show me where the state department says that donor conception is adoption fraud? I’ve read through the long sections you posted but I don’t see this there. Maybe just post the specific section?

      Also, I think that the new language I quoted changes some of what’s in the passages you quoted. That’s just something to keep in mind.

      • They say it a bunch Julie
        7 FAM 1131.5-1 Types of False or Fraudulent Claims
        (TL:CON-68; 04-01-1998)
        False or fraudulent citizenship claims involving children not related by blood to the U.S. citizens claiming to be their parents can involve false claims of paternity or false claims of maternity. When a married couple falsely claims that a child is theirs for purposes of citizenship documentation, it is sometimes referred to as adoption fraud. These fraudulent claims are often detected when the alleged parents apply on behalf of a child for a Consular Report of Birth Abroad or other documentation as a U.S. citizen

      • 7 FAM 1131.5-4 Maternity Issues
        (CT:CON-349; 12-13-2010)
        a. Indications of Fraudulent Maternity Claims; “Adoption Fraud”: Cases in which an unmarried U.S. citizen woman falsely claims a child as her natural child for citizenship purposes are relatively rare but can occur. False maternity claims are more often made by married couples, where the wife is a U.S. citizen.

      • Wait they don’t call donor conception fraud they call trying to pass off another person’s offspring as your own adoption fraud. Don’t get tricky. It’s not about conception its about actions after birth.

      • painful

  5. Julie,

    “…and a U.S. citizen mother must be either the genetic or the gestational and legal mother”

    I think the language that adds gestational may be a change from the earlier handbook used in the State Department. I had heard that State was re-evaluating their policy.

    I suspect this change would allow the twins of Elli Lavi to claim American citizenship, versus the earlier language which excluded them from citizenship status. It may have been inserted recently as a result of the re-evaluation of policy?

    But I do not know if it is a recent change. I haven’t been able to find any other citations that comment on it.

  6. It’s a change and I think it is a recent one–mid-January. But you can see it still eaves a thicket of issues.

    • If this policy only applies to married women, Lavi’s children will still have a citizenship disability via the USA.

      I re-read the change, and it depends on the conjunction [AND]. If a married citizen husband is required, it may not apply to double-donor situations or to single women.

      I am unclear, but this may be the shift: previously the State Department treated married couples as un-married couples, for citizenship issues, if donor eggs were used.

      [In order to transmit citizenship, husband had to affirm, via writing, that he would support the child for 18 years. Unmarried men who procreate overseas are treated differently then unmarried women.]

      But the language is unclear. I wonder who is in charge of this at State?

    • If it’s a recent change, is it related to other federal government changes to recognize same-sex marriages that were recently made? Like, they could no longer assume the mother’s spouse is a father, and citizenship used to be be passed on by the father more than the mother (having mothers pass on citizenship was itself a rather recent change, like in the last 30 years or so, right?). So on top of those changes, they also have to deal with spouses not even carrying each other’s or even their own babies. And on top of that, perhaps because of it, there is also a new idea of citizenship where people have a right to be whatever citizenship they want to be, regardless of what they were when they were born. I have commented on other blogs discussing immigration that it’s part of the feminist demotion of fatherhood, and of the idea that people are their fathers nationality and citizens of their father’s country.

  7. One more quick note to make two points.

    1. The policy is retroactive. This means that although it was adopted in January 2014 you can apply it to earlier cases.
    2. It seems to me to be an explicitly pro-ART policy–one that facilitates US married women who are living abroad using egg donors. (I say “living abroad” because if the woman lives in the US it would be more likely she’d just give birth in the US which makes all the issues go away.)

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