The question of whether citizenship will transmit to children born outside of the U.S. remains an important issue for your clients to consider when choosing to make assisted reproductive technology arrangements abroad.
By Leslie Schreiber, Lawyer and Counsellor
The United States fosters a positive environment for assisted reproductive technology arrangements (or ART). Nevertheless, there may be situations that motivate intended parents to consider traveling abroad to engage in ART to create their family. This article will examine the issue of transmission of U.S. citizenship to a child born abroad through assisted reproductive technology. When counseling clients who are considering traveling outside U.S. borders to create a family, an examination of the citizenship issues must be an integral part of the conversation because the risk of unwittingly creating a climate for a “stateless” child is a valid one. A stateless child is one described as a child who has no recognized national state in which the child is entitled to live, or he or she is not recognized as a citizen of the state where the intended parents live.
Taking All Factors Into Consideration
Whether considering egg donation, embryo donation, or utilizing a gestational surrogate, there are many factors that enter into the decision making process. Firstly, the climate for assisted reproductive technologies varies amongst each state within the U.S. A majority of the states statutorily enable egg donation and surrogacy, and enforce the contracts between intended parents and their collaborative partners. There are a few exceptions, however. Michigan is the only state that outlaws surrogacy arrangements. Additionally, several states rendered surrogacy contracts unenforceable, namely, Arizona, Indiana, Kentucky, Louisiana, and New York. Due to these exceptions, it is essential to advise your client about your choice of law and any potential risks involved.
The Major Financial Motivator
Another factor that may motivate intended parents to look abroad is cost. The main barrier faced by an American intended parent in choosing surrogacy here is the prohibitive cost. A typical surrogacy arrangement made through an independent surrogacy agency averages around $100,000.00 in the U.S. This cost includes the agency fee; surrogate compensation; professional fees such as legal, medical, and psychological evaluations; incidental costs for the surrogate; and insurance, if necessary. There are often unanticipated costs, so expecting a finite number is unadvisable. Egg donation fees vary depending on whether the process involves services of a third party agency, an in-house fertility clinic’s egg bank, or a private individual, as well as how many IVF cycles one utilizes. Regardless of the method used, the fees are often upward of $20,000. The sheer sticker shock forces many intended parents to seek alternatives, the main option being to search beyond the U.S. borders to find ART-friendly and financially feasible jurisdictions.
Countries like India and Ukraine have developed billion dollar industries by creating favorable surrogacy environments. Other countries, like Italy and Canada, have imposed strict barriers to the practice by banning surrogacy arrangements. Such disparity in this new “fertility tourism” industry can wreak havoc on the uninformed client.
Will U.S. Citizenship Be Transmitted To Your Client’s Child?
So, if your clients do decide to travel abroad for ART, an integral part of the discussion must include whether U.S. citizenship will be transmitted to any child or children born. Recent policy changes at the Department of State impact the rules governing the transmission of U.S. citizenship to children born abroad through the use of ART. Determining whether U.S. citizenship will be conferred upon children born abroad to an American parent utilizing surrogacy falls under the Department of State and is governed by U.S. law. More specifically, transmission of U.S. citizenship at birth to a child born abroad is governed by the Immigration and Nationality Act (INA) Sections 301 and/or 309. Section 309 governs children born out of wedlock. The Department of State broadly interprets the INA rules to: “require a U.S. citizen parent to have a biological connection to a child in order to transmit U.S. citizenship to the child at birth.”
Previously, the rules 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. Recognizing the increase in ART procedures around the world, the Department of State amended its rules in an attempt to keep up with the medical advances. Under the newly revised 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. What this means is that if a gestational mother (as interpreted by the DOS) utilizes the services of an egg donor, even though there is no genetic connection, citizenship will be bestowed as long as all other conditions per the rules are met.
For further clarification, please utilize: Important Information for U.S. Citizens Considering the Use Of Assisted Reproductive Technology (Art) Abroad.
 Charles P. Kindregan, Jr. and Danielle White, “International Fertility Tourism: The Potential for Stateless Children in Cross Border Commercial Surrogacy Arrangements.” Social Science Research Network, 2013, <http://ssrn.com/abstract=2359775>.
 MICH. COMP. LAWS ANN. § 722.857 (West 2013), <https://www.legislature.mi.gov/(S(wcbffryrqgfer045jxlf5w45))/mileg.aspx?page=getObject&objectName=mcl-722-857>.
 Legge 19 febbraio 2004, n. 40 (It.) and Assisted Human Reproduction Act, S.C. 2004, c. 2 § 6 (Can.), respectively.
 “Important Information for U.S. Citizens Considering the Use of Assisted Reproductive Technology (ART) Abroad,” Travel.State.Gov, <http://travel.state.gov/content/travel/english/legal-considerations/us-citizenship-laws-policies/assisted-reproductive-technology.html>.
Leslie Schreiber has been practicing law for over twenty years. She began her career in the appellate arena as a judicial clerk before transitioning to the appellate division for Florida’s Attorney General’s office. Enamored with reproductive law, she changed the course of her career. Leslie is an active member of the ABA’s Family Law Section of Assisted Reproductive Technology. www.leslieschreiber.com.