DHS Revises Policy To Include Women Using Fertility Technology To Give Birth In Definition Of “Mothers”

U.S. Citizenship And Immigration Services: Women Using Fertility Technology Such As Egg Donors To Give Birth Now Defined As “Mother” And May Confer Citizenship Status On Child. On October 28, the Department of Homeland Security's U.S. Citizenship and Immigration Services issued a new policy expanding the definition of “mother” and “parent” under the Immigration and Nationality Act (INA) to include “gestational mothers using assisted reproductive technology regardless of whether they are the genetic mothers,” for example, a woman who “became pregnant through an egg donor”:

USCIS issued a new policy (PA-2014-009) clarifying the definition of “mother” and “parent” under the Immigration and Nationality Act (INA) to include gestational mothers using assisted reproductive technology regardless of whether they are the genetic mothers. USCIS and the Department of State (DOS), who exercise authority over these issues, collaborated in the development of this policy. USCIS and DOS concluded that the term “mother” and “parent” under the INA includes any mother who:

·Gave birth to the child, and

· Was the child's legal mother at the time of birth under the law of the relevant jurisdiction.

Under this new policy, a mother who meets this definition but does not have a genetic relationship with her child (for example, she became pregnant through an egg donor) will:

· Be able to petition for her child based on their relationship

· Be eligible to have her child petition for her based on their relationship

· Be able to transmit U.S. citizenship to her child, if she is a U.S. citizen and all other pertinent citizenship requirements are met. [DHS, U.S. Citizenship and Immigration Services, 10/28/14]

Conservative Media Accuse Obama Administration Of Conspiring To “Sell U.S. Citizenship” With Policy Revision

The Daily Caller: "Obama Administration Allows Fertility Clinics To Sell U.S. Citizenship." The Daily Caller claimed that the new policy will now prompt fertility clinics to charge exorbitant fees for surrogacy to non-U.S. clients “because they can deliver U.S. citizenship with the baby”:

President Barack Obama's administration has decided to let the surrogate birth industry sell U.S. citizenship -- and access to the U.S. welfare system -- to foreign parents who never even set foot in the United States.

[...]

The change means that a woman who is a U.S. citizen can be hired by a reproductive medical clinic to become pregnant overseas and to give birth in China, Saudi Arabia, or anywhere else, and then effectively hand a U.S. passport to the baby.

[...]

That's also a huge benefit to the companies that broker the birth contracts. They can now raise their prices to overseas customers because they can deliver U.S. citizenship with the baby, no matter where the parents are living or where the child is born. [The Daily Caller, 10/28/14]

National Review Online: “Obama OKs IVF Industry To Sell US Citizenship!” In National Review Online's Human Exceptionalism blog, Wesley J. Smith claimed that the “Obama Administration has given its imprimatur to foreigners buying U.S. Citizenship for their babies”:

Realize that under surrogacy contracts, THE SURROGATE WAIVES LEGAL PARENTHOOD! But for purposes of opening America's doors, the Feds say baby citizen if surrogate was the legal mother at birth.

So, the contracts will just provide that the waiver of parenthood occur after birth, and voila, instant citizenship. For sale. Unbelievable. [National Review Online, 10/29/14]

Fox News Hosts: Revised Policy Could “Allow Fertility Clinics To Sell American Citizenship.” The hosts of Fox News' Outnumbered ;described scenarios in which a surrogate mother would attempt to “sell” her American citizenship to the child of a non-U.S. couple so the child could receive “welfare benefits” and an American education. Co-host Andrea Tantaros claimed the policy revision “has gotten out of hand,” because “you can actually have somebody in a foreign country ... as long as they are the vessel for carrying the child, and that child can get a U.S. passport.” [Fox News, Outnumbered, 10/29/14]

Revised Policy Simply Updates Law To Keep Pace With Science, Ensures Mothers Using Fertility Treatments Are Recognized As Legal Parent Of Child They Birth

USA Today: Before Revision, There Was “Glaring Inequity In U.S. Citizenship Regulations” For Mothers Using Donor Eggs. A 2012 USA Today article outlined the ordeal one mother, Ellie Lavi, went through to obtain U.S. citizenship for the twins she had birthed after fertility treatments:

An embassy staffer wanted to know whether Lavi got pregnant at a fertility clinic. She said yes and was told that her children were not eligible for citizenship unless she could prove that the egg or sperm used to create the embryo was from an American citizen.

[...]

The incident points out what critics say is a glaring inequity in U.S. citizenship regulations. A child adopted overseas by a U.S. citizen is eligible to become an American, and a baby born in the USA is American even if the parents are not.

But a child born to a U.S. citizen overseas through the increasingly common practice of in vitro fertilization with embryos from donor eggs and sperm is not American, unless an American is one of the donors. And that can be hard to prove since clinics may not reveal such things about their donors due to confidentiality agreements, immigration law experts say. [USA Today, 3/19/12]

Policy Corrects “Absurd” Situations In Which Mother Must Adopt Baby She Birthed. Attorney Mechelle Zarou explained that the updated policy corrects “absurd results in which a mother has to adopt the baby she birthed in order for the baby to obtain U.S. Citizenship”:

Under this policy, announced on October 28, 2014, a non-genetic gestational mother (i.e., a person who carried and gave birth to the child but has no genetic relationship to that child) who is also the child's legal mother may be recognized under the INA in the same way as genetic legal mothers. Previously, a genetic relationship with a U.S. citizen parent was required in order for a child born abroad to acquire citizenship at birth through his or her parent, resulting in absurd results in which a mother has to adopt the baby she birthed in order for the baby to obtain U.S. Citizenship. [JDSupra.com, 10/29/14]

State Department Made The Same Revision To Its Policy Months Ago. This change in policy has already been enacted by the State Department, which revised its language in January to allow gestational mothers (mothers who birthed the child and are its legal parent) who are U.S. citizens to confer their citizenship onto their child:

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. [U.S. Department of State, accessed 10/29/14; 10/29/14]