By Steve Snyder, executive director of IARC
Intended parents who wish to have children through third-party reproduction, but face highly restrictive and conflicting laws and regulations in their home countries, are increasingly crossing international borders to have their genetic children abroad.
Although the world is getting smaller and international borders are becoming more and more blurred, conflict among nations is developing over the nationality and citizenship of children born via international surrogacy arrangements. Intended parents must be aware of the complications that can arise when crossing borders for third-party reproduction.
This new prevalence of international reproduction cases has led to numerous unintended consequences that arise from conflicting international parentage and immigration laws. Before intended parents from the U.S. decide to go abroad for third-party reproduction, it is important to explore the laws in both the U.S. and in the country where the child will be born surrounding establishing legal parentage, acquiring desired citizenship, and obtaining a birth certificate and passport (for more information, visit the U.S. Department of State website).
Establishing Legal Parentage
Countries have different rules regarding the local parentage of children born through third-party reproduction. For example, a child born via surrogacy in the U.S. has U.S. citizenship based on birth in the U.S. Whether the child has the dual citizenship of his or her genetic or intended parents varies from country to country. A child born via surrogacy in India does not have Indian citizenship. Whether he or she has the citizenship of the genetic or intended parents again varies depending on the parent’s home country. Such issues and variations can cause disconnects between intended parentage and citizenship and actual parentage and citizenship that may prevent the child from returning to the parent’s home country or obtaining the parents’ citizenship. This is often profoundly affected by whether the genetic components that are used are the intended parents’ or a donor’s.
Acquiring Desired Citizenship
If a child is born to a U.S. citizen abroad, it is necessary that the child be biologically (genetically) related to a parent with U.S. citizenship in order to transfer U.S. citizenship to the child at birth. In the case of a child conceived using Assisted Reproductive Technology (ART), a father with U.S. citizenship needs to be the genetic parent or the mother with U.S. citizenship needs to be either the genetic or gestational and legal mother of the child.
Obtaining Birth Certificates and Passports
As described above, it may be difficult for a child who is not biologically related to a U.S. citizen and who is born to a surrogate in another country to return home with the intended parents. A child not biologically related to a U.S. citizen parent will not automatically acquire U.S. citizenship and will not, therefore, qualify for a U.S. passport. Depending on the country of birth, the child may not acquire citizenship for the country in which the child is born because the surrogate mother may not be considered the parent of a child. This is the case in India. Getting a U.S. passport to or from the place of birth may be a challenge in such cases.
Future Structure and Regulation Surrounding International Third-Party Reproduction
As these new legal issues have arisen and been presented to the courts of numerous countries, it has become apparent that current international laws do not adequately address the resulting parentage, nationality and citizenship issues. As a result, The Hague and the international regulatory community is working to create structure and regulation surrounding international surrogacy, parentage and citizenship. The form and effect of such regulation has not yet been determined. It could make such issues either simpler or more complicated; it could make international reproduction more accessible or less available. The American Bar Association Family Law section Assisted Reproductive Technology Committee (ABA ART Committee) is currently working with the U.S. State Department to develop sound recommendations regarding such regulation.
Complications around cross border third party reproductions involve all legal practitioners who practice immigration law, family law, and ART law around the globe. It takes knowledgeable and experienced attorneys from the intended parents’ home country and the country where the child will be born to help the intended parents successfully navigate these complex issues. One way to ensure the knowledge and experience of the legal practitioner you consult is to ask if he or she belongs to the ABA ART Committee which has numerous international members who work together to prevent and resolve such issues.
To learn more or discuss surrogacy with our experts, contact our experienced, multilingual staff at 763.494.8800.