What the US Department of State Thinks About Biological Parenthood

There’s been conversation here from time to time about what it means to be a “biological parent.”   I think that the term is at best murky, because I think a woman who gives birth to a child–whether genetically related to the child or not–might be a biological parent.   Others disagree and, I think it is fair to say, view “biological parent” as essentially the same as “genetic parent.”

We’ve also disagreed (very recently) about whether the woman who gives birth has a biological relationship with the child.   I think the division here is pretty much the same split about whether “biology” includes more than “genetics” in this context.

On one level this is just a debate about language and one might say that everyone is free to use the language they prefer, so long as they make its meaning clear.  (I insist on the latter because without that, communication becomes ensnarled in misunderstanding.)  Thus, as long as you all know what I mean by “biological parent”–and in particular that I do not mean it to be the equivalent of “genetic parent” I think it’s fine to use it.

But as we all know, there are moments when the meaning of terms isn’t just up to the speaker.   And here’s one of them.

If a child is born abroad–by which I mean outside of the US–under what circumstances is it a US citizen?   US law, formed partly from statutes and partly from the US State Department’s interpretation of law, provides that a child is a US citizen if the child has a “biological connection” to a US citizen parent.

Well now, as you can see, we need to know what it means to have “a biological connection” to a parent.   And it cannot be just whatever the speaker wants–there needs to be a fixed and agreed upon meaning.  (Without that, you don’t have any uniform law.)

In that context, here’s what the state department has to say.  After noting the requirement of biological connection, it says :

In other words, in order to transmit U.S. citizenship to a child conceived through Assisted Reproductive Technology (ART), a U.S. citizen father must be the genetic parent and a U.S. citizen mother must be either the genetic or the gestational and legal mother of the child at the time and place of the child’s birth.  (A gestational mother is the woman who carries and gives birth to the child.)

(Emphasis added.   You can find the full text here.)

Now honestly, I’m not completely happy about the language here.  There are some “ands” that puzzle me.  (A child does not need both a US citizen father and a US citizen mother, so what is that “and” doing in there?  I’m also unclear about what the “and” after gestational mother is doing there.)

But putting those issues to one side, it seems pretty clear to me that in the State Department’s view, a woman who gives birth to a child has a biological relationship to the child.   I’m not suggesting that this means we cannot have the conversation about what the terms “biological parent” and “biological relationship” mean. I just think this should be part of it.

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30 responses to “What the US Department of State Thinks About Biological Parenthood

  1. Single mothers are left out of this definition. I’m curious how this rule would apply to singles. By definition, it does not.

  2. Is an awkwardly written sentence. A single father or single mother may transmit US citizenship to a child born abroad. (Or a US citizen who is married to a non-US citizen, the US citizen can transmit the citizenship alone). The paragraph then explains what’s considered a father AND a mother. Perhaps it would have been clearer had they written OR.

  3. That’s the problem of the first “and.” I am fairly sure that a single US citizen woman who was either the gestational mother or the genetic mother would be able to establish citizenship for her child. You don’t need both genetic parents to be US citizenships, so if she established her own claim, it ought to work. If I’m wrong about this I imagine someone will correct me. But I’m pretty sure I’m right.

  4. I do not see a grammatical issue for single mothers here. The passage is completely clear to me.

    It means a child is entitled to US citizenship if the genetic father is a US citizen, and it means that a child is entitled to US citizenship if the genetic mother or gestational carrier and legal parent is a US citizen. That means US citizens who go abroad to get IVF using an egg donor will be able to pass their citizenship on, as do those who are genetic mothers but used a gestational surrogate to carry the pregnancy.

    The passage does not mean mothers who would otherwise qualify to pass their citizenship on cannot do so if the genetic father or sperm donor was not a US citizen. “And” is simply a conjunction. They could have created two sentences, or used the word “or”.

    Are there any cases that do not support that rather obvious interpretation?

    • Just so we’re all in the same place (and I think you and I are, but for readers, too) the “and” that perplexes me is the one between the US citizen father and the US citizen mother.

      It seems to me it suggests that the child needs to have both a US citizen father and a US citizen mother (of one sort or another) and I don’t think that is so. It’s true, of course, that the could have used the word “or” there. But they didn’t. They chose “and.” It may just be a conjunction but it has a particular meaning, one quite different from “or.”

      • Not really, since the individual parts of the sentence point to the idea that having a US citizen legal father is enough, and having a US citizen legal mother is enough. If they’d chosen “or”, it might actually imply children who have two US citizen parents do not have the right to citizenship :). You can’t win. They should have created two separate sentences, or even three. One relating to mothers, one to fathers, and one to a situation in which both parents are US citizens. The situation in which neither are, obviously means no citizenship is granted.

        I have some experience with complicated issues like this. My parents were citizens of two different countries as well as Jews, and I have lived abroad most my life. I am entitled, theoretically, to quite a few different passports. Some deny citizenship to those who also have another citizenship, and others come with residency requirements.

        Being generally non-standard in terms of heritage and residence can cause consular staff to tell you you do not have the right to X citizenship — because of silly wordings like the one above making them confused — even if you just came to renew a passport you already had. It usually gets cleared up once that person talks to his/her boss, though.

        As an aside, my youngest was born at home without a midwife. A DNA test was required before he could have a birth certificate.

  5. Julie is this new because he had well established rule to the contrary that includes my favorite term maternity fraud. As you can imagine this change ticks me off.

  6. The question is, though, what’s meant by “gestational and legal” mother. Does that mean gestational mothers only qualify to pass their citizenship on if they can establish legal parentage? And what is the procedure for that?

    • This is the second “and” I wonder about. I’m reading it that the “and legal” applies only to mothers (as opposed to fathers) but I cannot actually tell if it applies to both genetic mothers and gestational mothers. I think the construction is ambiguous.

      Let’s agree, for the moment, that it means that the child is a US citizen if either 1) the genetic mother is a US citizen or 2) the gestational mother is a US citizen and she is also a legal parent of the child. I’m not actually sure why one would include a provision like this. It excludes children of US citizen gestational mothers where the gestational mothers are not legal mothers. You would think that has something to do with surrogacy, perhaps? But I think that when people use surrogacy outside the US they rarely if ever use US citizen surrogates. Indeed, isn’t the whole point generally to use (less expensive) foreign surrogates? In which case what is the point of the language? Who exactly is supposed to be excluded by the “and legal” provision?

      There’s another thing this raises, too, no matter who the “and legal mother” clause applies to. That’s what whether it matters what law you look to. Does it mean you have to be a legal mother according to the law of the country in which the child is born? Or are we supposed to look at some other law?

      For what it is worth, my guess is that in most countries, a woman who gives birth is the legal mother of a child and so my guess is that additional phrase won’t do much. But I sure could be wrong about that.

      • It means she must be BOTH the legal mother and biological mother. for example we discussed in the UK how there is a certain period of time that the surrogate is considered the legal mother. During that period if the genetic US citzen mother to declare the child, she could not because she would not yet be a legal mother.
        The phrase is awkwardly written. It means the a US mother Or father may pass their citizenship along. it uses thte word AND in the context of the defnitions. ie A mother defined as such, and a father is defined as that.
        however, all they do is ask, and one could easily lie. “was this child born as a result of IVF?” all yo uhave to do to get by is just answer no.

  7. UNCLASSIFIED (U)
    U.S. Department of State Foreign Affairs Manual Volume 7
    Consular Affairs
    7 FAM 1130 Page 4 of 69
    UNCLASSIFIED (U)
    7 FAM 1131.4-2 Citizenship in Artificial and In Vitro
    Insemination Cases
    (CT:CON-349; 12-13-2010)
    a. A child born abroad to a foreign surrogate mother who is the natural/blood
    mother (i.e., who was the egg-donor) and whose claimed father was a U.S.
    citizen is treated for citizenship purposes as a child born out of wedlock. The
    procedures for proving citizenship under section 309(a) INA (8 U.S.C. 1409(a)),
    as amended apply (see 7 FAM 1133.4-3 b). The blood relationship between the
    child and the putative U.S. citizen father must be proven. Additional evidence
    beyond the child’s birth certificate and statement of the parents is required.
    Certification by appropriate medical authorities of all facts and circumstances
    surrounding the entire insemination procedure is required. Examples of
    appropriate supporting documentation include hospital records from the facility
    where the sperm donation was made, affidavit from the doctor who performed
    the operation, and possibly blood tests.
    b. A child born abroad to a foreign surrogate mother who was not the egg-donor
    and whose claimed mother (egg-donor) and/or claimed father was a U.S.
    citizen is treated for citizenship purposes either as a child born out of wedlock
    to a U.S. citizen mother (if the sperm donor was not a U.S. citizen) or as the
    child of two U.S. citizens. The applicable sections of law generally are sections
    309(c) and 301 INA.
    c. The status of the surrogate mother is immaterial to the issue of citizenship
    transmission. The child is considered the offspring of the biological parents and
    the appropriate INA section is applied. Evidence to establish the blood
    relationship between the child and the biological parents would be similar to
    that mentioned in 7 FAM 1131.4-2 a.

  8. WHEW Oh good
    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. The
    husband may or may not be a U.S. citizen. The couple falsely claims that a
    foreign-born child is their natural child, when typically, in fact, they have
    adopted the child or, otherwise, obtained physical custody of it. The false claim
    that the child is theirs is made to avoid adoption and/or visa procedures and to
    fraudulently document the child as a U.S. citizen. This is often referred to as
    “fraud by adoption”—a false claim to citizenship filed on behalf of a child by the
    alleged biological parents, who, in fact, share no blood relationship with the
    child and, therefore, could not confer citizenship on the child. An interview with
    the alleged parents may disclose some or all of these fraud indicators:
    (1) The alleged mother arrived in the foreign country a few days before the
    child’s birth;
    (2) The alleged mother is middle-aged and this is a first child/or the couple has
    been married for many years without children;
    (3) The child was born in a private home with the mother unattended or with
    only a midwife present;
    (4) The alleged mother claims to have had no prenatal care and not to have
    known the baby’s due date;
    (5) The alleged mother claims that the child was born prematurely; and
    (6) The physical characteristics of the child and of the alleged parents do not
    seem compatible.
    b. How To Resolve Doubts: If the post has any doubts about the child’s
    parentage, further inquiry and documentation are required. Posts should take as many of the following steps as seem appropriate or necessary:
    (1) Establish that pregnancy did exist, and request copies of prenatal and post-natal records;
    (2) Request the authorization letter, if any, given to the woman by her physician stating that she could fly without endangering her health. Airlines usually refuse to assume responsibility for a woman who has reached her seventh month of pregnancy and often request such a letter before allowing a pregnant woman on board;
    (3) Investigate the clinic or hospital where the birth allegedly occurred to determine if it is a legitimate medical facility. Request medical records to determine whether the woman was a patient, and is the biological mother of the child;
    (4) When the consular officer strongly suspects that a newborn child was adopted, request that the woman undergo a physical examination as soon as possible by a physician whom the post believes to be reliable. Physical evidence of pregnancy and childbirth may be obvious for only a few weeks after the birth;
    (5) Contact the midwife or doctor who attended the birth to confirm statements given by the alleged parents; and
    (6) If doubts remain about the child’s blood relationship to the alleged parents, blood or DNA tests might be useful (see 7 FAM 1100 Appendix A.)

    this gem can be found at http://www.state.gov/documents/organization/86757.pdf

  9. Here’s what I don’t get when people try to differentiate between someone’s biological child and someone’s genetic child: there is no part of your biology that does not contain your genes.

    I think it’s fair to say that a woman carrying an egg donor’s pregnancy is having a biological pregnancy EXPERIENCE in her own right but the pregnancy or embryo implanted in her is not her own. Her biology is not the basis for that embryo.

    My nose, my eyes, my ears, my genes, my biology, my child – these are not statements of property ownership these are statements of biological fact these things originated from my body whether they remain attached or not is irrelevant, they are uniquely mine. Everyone gets his or her own biology and if they reproduce they will have his or her own children.

    Biologically the gestating female is pregnant and it is her own body’s biological process and experience. But the fetus she carries is biologically someone else’s not hers, same goes for the person she gives birth to. To suggest otherwise is a cunning attempt at trickery. It’s clever word play that flies in the face of logic.

    • Marilynn,

      These links to the definition of genetics and biology may help clarify things for you.

      http://m.dictionary.com/definition/genetics

      http://m.dictionary.com/definition/biology?linkid=ibc5yn&srcpage=definition&site=dictwap

      At least to me it makes sense that in the case of an egg donor and a surrogacy that the person whose egg the child was conceived from is the genetic mother while the person who carried out the pregnancy is the biological mother. Both played a key role in the child being born.

      • Oh well I get my definition from the American Society of Reproductive medicine. Surely a better source than a web dictionary..
        Here you go. http://www.asrm.org/topics/detail.aspx?id=418

        • At least to me birth mother implies the woman have birth to the child and then placed the child for adoption. Some in the adoption community refer to women who are pregnant and considering adoption as birth mothers but I don’t think that applied to them. Prior to birth they are expectant mothers and if they don’t place they are mothers.

          • Actually the term for a pregnant woman is expectant mother whether she is considering adoption or not is irrelevant to her status as the child’s mother at birth. In the adoption community it is considered disrespectful to refer to a pregnant woman as a birth mother because it assumes her decision is the equivalent of a promise made to individuals hoping to adopt her child at birth.
            http://www.firstmotherforum.com/2013/11/if-woman-hasnt-given-birth-how-can-she.html

          • Oh now I see what you are saying – because the term birth mother is typically associated or applied to a mother post adoption to differentiate her from the mother by adoption. Yes of course your right that is true that nobody uses the term birth mother unless she’s given a child up for adoption but the same is true for the term biological mother. Nobody uses the term biological mother unless she’s given up a child for adoption either. Until that point everyone just assumes that when a person says mother it means 1) biological including the genetics which are inherent within cellular biology and 2) they assume you mean she’s also raising her child. You say birth or bio mother to clarify that she did not raise her child or you use adoptive to clarify that she adopted someone else’s offspring.
            So the fact that they are clamoring to make it sound like they are women who have given their bio children up for adoption is yes, ironic but its really important to make it sound like they are raising “their” child and don’t want to share the term mother with the actual bio mother. They get way offended at the suggestion that they gave birth to another woman’s biological child. They’ll claim their blood coursed through the fetus’ body or that every cell in the baby’s body was built from their body during pregnancy – none of which is true. And I’m referring to statements by Marna of PVED who should no better than to mislead infertile women desperate to believe they can still be biological mothers. It is not fair to them. They go through tremendous expense and are led to believe something that is not medically accurate and then they wind up dealing with the emotional fallout when the person they delivered goes off in search of his or her biological mother and maternal relatives. Not because of rejection by her or their bio father or non bio father, just because its their family and they want to find them because they belong to that other family as well and they are at least as important as the families they were raised in.

            • “They go through tremendous expense and are led to believe something that is not medically accurate and then they wind up dealing with the emotional fallout when the person they delivered goes off in search of his or her biological mother and maternal relatives. Not because of rejection by her or their bio father or non bio father, just because its their family and they want to find them because they belong to that other family as well and they are at least as important as the families they were raised in.”

              This has nothing to do with us debating if there is a difference between a biological mother and a genetic mother. You need to drop your agenda sometimes.

              I think you missed the boat on Dawn’s blog on her piece of what infertility makes people feel like. I thought you could have shared how your infertility made you feel to really connect with the audience and instead choose to further pursue your agenda that was not relevant to the discussion. There are discussions where it’s relevant and others where it isn’t.

              • Not to mention that she claims everyone conceived with donor eggs feels the same way. Yes, I am sure some feel as she states, but there are also going to be those who are interested in the egg donor but care more about the family they grew up in, and those that don’t feel very interested in the egg donor but would like some basic info, and those that don’t feel a need to know anything at all.

                • No I really don’t claim all people in any situation are going to feel the same. I try to stick to saying stuff about them all being subjected to the same unfair treatment whatever it is. In this case I think its wrong to fill women full of lies about being able to be biological mothers. I am surprised I need to qualify my statements but OK I will. There are no circumstances when I think all people will feel the same way or will act the same way when they are subjected to things that are unfair to them. The clinics are almost all using biological inference to sell their wares even though it is contrary to logic and is in conflict with what the ASRM guidelines say. I think its opportunistic and unprofessional to mislead people that are patients seeking medical advice carrying another woman’s child to term to lead her to believe that its perfectly OK to walk around claiming to be the biological mother of another woman’s child. Here is my caveat then, those who inform the child they deliver that they are in fact the offspring of a donor are will be in for a rude awakening as that person begins to learn about what a biological mother is at school. They’ll come to understand what it means for an organism to have offspring or biological children of their own and then the woman that delivered them will seem deceptive because there is no other way for her to seem since what she said is not true according even to the organization that writes practice guidelines for reproductive endocrinologists. It’s also not true according to the State Department and U.S. Code. Its the emperor’s new clothing.

              • No it is completely relevant. The term biological parent is so prized so sought after that clinics and doctors are trying to cash in on it by leading women to believe that they are biological mothers when they are not. it is exploitive and opportunistic. It’s very relevant because we must have some terms that remain scientific and the ASRM is very clear that the woman who gives birth cannot claim to be the biological mother of another woman’s offspring. They are the medical experts on reproductive medicine and the best they can do is birth mother.

      • Cause in the field of medicine, science, and biology – genes and genetics are biological. Sure her pregnancy experience is biological but the person she delivers is not her biological child because that person inherited none of their biology from her.

        The fact that someone else “gave” her their egg does not make it suddenly her egg – it’s still theirs. She can’t say its her egg with the exception of its dna because the dna is in the whole egg. It’s not her biological egg nor is it her genetic egg in fact its not hers nor will the embryo created with the other woman be hers. She’s carrying another woman’s biological offspring. She’s going to give birth to what will be her step child. She’s going to be the birth mother of record.

        People confuse birth mother with biological mother. Definately the woman who gives birth but it won’t be her biological child unless the child shares her biology. The fetus she carried did not even share her biology – it used it, developed within her biology etc.

      • No but seriously Greg, think about the pregnant woman’s biology – it’s hers and she’s undergoing a biological experience of pregnancy and carrying a fetus to term but the fetus is not her biological fetus in the way her arm is her biological arm or her ear is her biological ear, because biologically the fetus shares none of her biology. Now I’ll grant you that she is allowing the fetus to develop within her body and that the process she experiences is biological but she is not telling the truth to refer to the person she gives birth to as her biological child because what belongs to her biologically was the process of gestating and not the fetus she gestated. Certainly she has no biolgical connection to the person she delivers as there is no lasting connection evident in the biology of the person she gave birth to.

        • The woman has no genetic connection to the child meaning a surrogate won’t share any inherited traits. Meaning the child won’t look like her or inherit certain genetic conditions. But they do share a biological bond where the child grew off of the woman who carried the pregnancy. I think we agree to disagree on this one. No use in getting into this any further.

          • what part of her biology the the person she gave birth to share with her? Just the memories of pregnancy? Sentimentality?

            Tell me do you believe that people are biological parents of their own offspring or not? They are the biological origin of the person delivered. When you introduce a gestational carrier to the mix there is a second stop on the way out, another person who will help what was already created grow and develop.

  10. FYI for anyone who’s interested. The language distributed by State is cut and pasted below.

    The State Department reevaluated their procedures and altered their interpretation of the federal law. Note: State does not make law, it interprets existing law. At issue was the definition of parent.

    Although anyone living abroad should contact a lawyer, my interpretation would be that both egg donor and double-donor children would gain American citizenship through the American legal mother.

    This change in citizenship regulations closes a loophole that denied American citizenship rights to the legal children of American mothers born via egg donor and double donor situations. It closes a loophole that created stateless children in some situations, as not all nation-states give out birthright citizenship.

    Note: gender inequality is still an issue in the transmission of American citizenship to children. It is more difficult for unwed fathers to transmit citizenship then for unwed mothers. But I believe the votes now exist to overturn this final inequality with the next challenge before SCOTUS.

    UNCLASSIFIED STATE 00010952
    JAN 14
    SUBJECT: POLICY CHANGE RELATED TO CHILDREN BORN ABROAD THROUGH
    ASSISTED REPRODUCTIVE TECHNOLOGY (ART)

    “There has been a recent policy change related to children born abroad
    through assisted reproductive technology (ART). The previous policy
    required that a mother have a genetic connection to a child in order
    to qualify as a parent for the purpose of obtaining immigration
    benefits. Under the new policy, birth mothers (gestational mothers)
    who are also the legal parent of the child will be treated the same as
    genetic mothers for the purposes of immigration benefits.

    Immigration of Children of Gestational, Legal Mothers: The
    Department of State and the Department of Homeland Security are now
    interpreting relevant U.S. law such that the definition of “child”
    will include the child of a genetic or gestational parent who is also
    a legal parent at the time of the child’s birth. Under the new
    interpretation, INA Section 101(b) (8 U.S.C. Section 1101(b)) treats a
    child as being born “in wedlock” under INA Section 101(b)(1)(A) when
    the genetic and/or gestational parents are legally married to each
    other at the time of the child’s birth and both parents are the legal
    parents of the child at the time and place of birth.

    A “child legitimated” and a “legitimating parent or parents” in INA
    Section 101(b)(1)(C) includes a gestational mother who is also the
    legal mother of the child. The term “natural mother” in INA Section
    101(b)(1)(D) includes a gestational mother who is the legal mother of
    a child at the time and place of birth, as well as a genetic mother
    who is a legal mother of the child at the time and place of birth.

    Retroactive Application: The new policy will be retroactive. There
    will be cases in which children born abroad to a gestational and legal
    mother were previously denied an immigration benefit under the prior
    interpretation. In such cases, parent(s) must submit a new
    application for their child, if they wish to re-apply. The
    application must include sufficient evidence demonstrating that they
    meet all relevant statutory and regulatory requirements as well all
    appropriate fees.”

    Kerry
    UNCLASSIFIED STATE 00010952

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