The American Bar Association Section of International Law Meeting 2012, Presentation on International Family Formation

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1 Lisa Vogel, Attorney Adviser U.S. Department of State 2201 C Street, NW Washington, DC (202) AskPRI@state.gov The American Bar Association Section of International Law Meeting 2012, Presentation on International Family Formation DOCUMENTING U.S. CITIZENSHIP AND GETTING A U.S. PASSPORT FOR CHILDREN BORN ABROAD TO U.S. CITIZEN PARENTS THROUGH ASSISTED REPRODUCTIVE TECHNOLOGY The science of Assisted Reproductive Technology (ART) is developing at rapid speed, creating new possibilities for people seeking to become parents that did not exist several years ago. At the same time as these scientific advances have occurred, international travel has become easier and more common than ever before. For these reasons and others, including economic and legal factors, the State Department has seen a steady increase in the number of people coming to our Embassies and Consulates trying to document the citizenship of children born abroad to U.S. citizens through ART. The Department has seen examples of intending U.S. parents who have used ART to conceive children using almost every combination of U.S. eggs and sperm or foreign eggs and sperm and foreign or U.S. surrogates. U.S. intending parents have been single men, single women, married heterosexual couples, and same sex couples, both married and unmarried. U.S. citizenship laws and policies have not kept pace with the scientific developments in ART. When the Immigration and Nationality Act was passed in 1952, it was not possible or even imaginable that a woman could give birth to a baby that was not genetically her own. It is not surprising that the language of U.S. citizenship statutes written in the 1950s is not a perfect fit for these cases involving ART. 1

2 Law governing transmission of U.S. citizenship at birth to children born abroad A. Birth within the United States Pursuant to the Fourteenth Amendment of the U.S. Constitution, a person born in the United States, and subject to the jurisdiction thereof, is a U.S. citizen. 1 (People who are born in the United States to foreign diplomats who have been given full privileges and immunities are not subject to the jurisdiction of the United States and do not acquire U.S. citizenship if born in the United States. ) For practical purposes, other than the children of a few foreign diplomats, children born in the United States through ART are automatically U.S. citizens. Therefore, while there may be complicated legal questions such as who is the legal mother or father of the child the child s citizenship is simple. If a child is born to a surrogate mother in the United States, the child will be a U.S. citizen, regardless of the citizenship of his or her genetic or legal parents. B. Birth of children born abroad to a U.S. citizen parent The law governing the transmission of U.S. citizenship to children born abroad is INA 301, (8 U.S.C. 1401). Under INA 301, a child born abroad acquires U.S. citizenship at birth if the child is born of a U.S. citizen parent and if the parent meets other statutory requirements relating to physical presence in the United States. 2 The Department has interpreted the phrase, born of to require a legal and biological relationship between the transmitting U.S. citizen parent and his or her child. 3 Under the Department s interpretation, born of means the genetic issue of that parent. In other words, either the sperm or the egg that created a child born abroad must be from a U.S. citizen parent for transmission of U.S. citizenship to occur (provided 1 Const. Amend. XIV. 2 See INA 301(c), (d), (e), and (g) in appendix. 3 See 7 FAM

3 other statutory requirements are met.) Anonymous donor eggs are presumed to be alien eggs (those of a non-u.s. citizen). Therefore, a woman giving birth abroad to a baby who is not her genetic child cannot transmit U.S. citizenship to him or her at birth. The consular staff in U.S. Embassies and Consulates see many ART cases that involve couples using the husband s sperm and donor eggs. Such cases are adjudicated under INA 309(a) as out of wedlock births. 4 Some parents question why the Department adjudicates their case as an out of wedlock birth when they are married to each other. The Department s position is that to transmit citizenship under INA 301(a) or (c), the sperm donor must be married to the egg donor. Due to this requirement, many ART cases are viewed as out of wedlock births and governed under INA 309(a) because the parents used either a donor s eggs or sperm or both, instead of their own eggs and sperm. When a case is determined to be an out of wedlock birth to a U.S. citizen father, the father must prove his paternity by clear and convincing evidence. In countries where medical records and other types of documentation are not considered reliable, a DNA test may be the most reliable way to prove paternity. The father must also meet statutory physical presence requirements and must agree in writing to support his child financially until the child turns 18. In addition, the child must be legitimated before he or she reaches eighteen. When a case is adjudicated as an out of wedlock birth to a U.S. citizen mother that is, when the egg donor is the U.S. citizen the case is adjudicated under INA 309(c). 5 Under INA 309(c), the mother must prove that she has been continuously present in the United States for one year or more before the birth of her child to transmit U.S. citizenship to her child. 4 See INA 309(a) in appendix. 5 See INA 309(c) in appendix. 3

4 In cases where a child born abroad has no genetic connection to a U.S. citizen parent, the child cannot acquire U.S. citizenship at birth. Documentation of U.S. citizenship A person who acquires U.S. citizenship through birth abroad to a U.S. citizen parent may get a Consular Report of Birth Abroad of a Citizen of the United States of America (CRBA) from the U.S. Embassy or Consulate in the consular district of their country of birth. A CRBA is a document certifying the acquisition of U.S. citizenship at birth of a person born abroad to a U.S. citizen parent(s). 6 Under U.S. law, a CRBA serves as proof of U.S. citizenship and establishes a prima facie case of U.S. citizenship. 7 For attorneys advising parents seeking a CRBA, it is important to emphasize what the CRBA does and does not do. A CRBA is intended to certify the fact that a child born abroad is a U.S. citizen. A CRBA is not intended to verify the legal parental or custodial relationships of any adults to the child. Despite the fact that the primary purpose of the CRBA is to certify U.S. citizenship, many parents remain concerned about whose names are listed as parents of the child on the CRBA. Pursuant to State Department policy, the parent that is transmitting U.S. citizenship to the child must be listed on the CRBA application and is generally listed on the CRBA form itself. A second parent without the power to transmit U.S. citizenship (either because the parent is not a U.S. citizen or because he or she is not biologically related to the child) may be placed on the CRBA if he or she has a legal parental relationship with the child according to the law of the country of birth or pursuant to an adoption. A legal parent who is not the transmitting U.S. citizen parent may be left off the CRBA if he or she is not the intended parent of the child. Thus, 6 7 FAM (a) (see appendix). 7 Id. See also 22 U.S.C

5 parents can usually choose whether or not to list a foreign surrogate mother on the CRBA. On the other hand, if the intended mother of a child born through ART has no biological connection to the child, and she is not recognized as a legal parent under the laws of the child s country of birth, she cannot be placed on the CRBA unless she has adopted the child. Because intended parents who are not legal parents are often upset when their names are not placed on the CRBA, attorneys must remind their clients that this omission should have no bearing on later determinations of their legal parental relationship to their child because the CRBA is intended to certify the child s U.S. citizenship, not parental or custodial rights. Two-Parent Consent Rule for U.S. Passports for Minors Parents of a child who is born abroad usually apply for a US passport for their child at the same time as they apply for a CRBA. Unlike with a CRBA, the legal custodial relationship between parents or guardians and the child is important for purposes of getting a passport for a child under sixteen years of age. Unless one of the exemptions enumerated in 22 C.F.R exist, both of the child s custodial parents or guardians must sign the minor s passport application. 8 The purpose of the two-parent consent rule is to help prevent international parental child abduction. One result of the different focuses of a passport application and a CRBA application is that, in an ART case, different people may be required to sign a child s passport application than were listed on the child s CRBA. A common scenario that the State Department encounters is a married U.S. citizen couple who use a surrogate abroad to give birth to a child conceived with the husband s sperm and a donor s egg. In the country of this child s birth, a surrogate mother is considered the legal 8 22 C.F.R

6 mother of the child she gives birth to, regardless of whether or not she is the genetic mother. In this scenario, the couple usually obtains a CRBA that lists only the U.S. citizen father. In order to get a U.S. passport for the child, however, the father would either need to get the written consent of the surrogate mother, because she is the other legal parent of the child, or a court order granting sole legal custody to the father or authorizing the child to travel internationally with the father. In addition, because passports for minors are only valid for five years, the intended parents would have to get the surrogate s signature or a court order every five years until the child turns sixteen. If the intended mother wants to be listed on the passport application, the parents would have to present evidence that she is now the legal custodial parent of the child. In all CRBA and passport adjudications, the burden is on the person requesting a CRBA or passport to provide sufficient documentation to support all of the elements required for issuance. As the above example demonstrates, parents planning on using ART to have a baby abroad must think carefully about whether and how they will be able to return back to the United States with their child. They must be aware of the citizenship consequences of the particular circumstances of their child s birth and also their ability to get travel documents. The Department has a web page that gives useful information to intended parents who are considering having a baby abroad through the use of ART. The link is The case studies below are based on real-life scenarios and are meant to further explain how the State Department views the citizenship consequences of ART cases under current law, regulations, and policy. 6

7 CASE STUDIES Case #1: A married U.S. citizen couple uses a fertility clinic in a foreign country. The foreign surrogate mother gives birth to a child conceived with the U.S. citizen husband s sperm and a donor egg. The State Department sees many cases with this set of facts in different countries around the world. These cases are adjudicated as out of wedlock births to a U.S. citizen father under INA 309(a). In order to transmit U.S. citizenship and obtain a CRBA for the child, the father must do the following: prove his paternity by clear and convincing evidence; provide evidence that he was physically present in the United States for at least five years before the child was born, at least two of which were after the age of fourteen; agree in writing to provide financial support for the child until the child turns 18; and provide evidence that the child has been legitimated before he or she turns eighteen. Assume that in this country, the woman who gives birth to a child is considered the legal mother of the child. The intended parents would either need to get the surrogate mother to sign the child s passport application or would need to present evidence that the father has the right to sign the passport application without the legal mother s consent. This evidence could be a court order granting the father sole legal custody or granting the child the right to travel internationally with the father. Case #2: A Canadian woman is legally married in Canada to a U.S. citizen woman. The Canadian spouse gives birth to a baby conceived with donor sperm and the U.S. citizen woman s eggs. In 7

8 this case, the U.S. citizen would be considered the genetic mother and the Canadian citizen the birth mother. The State Department adjudicates this case as out of wedlock birth to a U.S. citizen mother under INA 309(c). In order to meet the requirements of INA 309(c), the U.S. citizen mother must have been physically present in the United States for a continuous one year period before the baby was born. If the U.S. citizen mother meets the requirements, the child is a U.S. citizen. Under Canadian law, both women are listed on the child s birth certificate and both women are legal parents. The CRBA must include the name of the U.S. citizen mother, but may also include the name of the Canadian birth mother if the parents so desire. In order to issue a U.S. passport for the child, the passport application must be signed by both women. Case #3: A U.S. citizen mother in the United Kingdom gives birth to a child conceived with a donor egg and her British husband s sperm. Under British law, the U.S. citizen birth mother is listed on the birth certificate and is the legal mother of the child. However, because the child has no genetic connection to a U.S. citizen parent, the U.S. Embassy cannot document the child as a U.S. citizen. Case #4: A U.S. citizen wife and her alien husband use the husband s sperm, a donor egg, and a foreign surrogate to have a child in a foreign country. Because the child has no genetic connection to a U.S. citizen parent, (anonymous egg donors are assumed to be aliens), the child cannot acquire U.S. citizenship at birth. 8

9 Appendix: Select Statutes, Regulations and State Department Policy Related to Children Born Abroad Through ART INA: ACT 301(c)(d)(e)(g) - NATIONALS AND CITIZENS OF THE UNITED STATES AT BIRTH Sec [8 U.S.C. 1401] The following shall be nationals and citizens of the United States at birth: (c) a person born outside of the United States and its outlying possessions of parents both of whom are citizens of the United States and one of whom has had a residence in the United States or one of its outlying possessions, prior to the birth of such person; (d) a person born outside of the United States and its outlying possessions of parents one of whom is a citizen of the United States who has been physically present in the United States or one of its outlying possessions for a continuous period of one year prior to the birth of such person, and the other of whom is a national, but not a citizen of the United States; (e) a person born in an outlying possession of the United States of parents one of whom is a citizen of the United States who has been physically present in the United States or one of its outlying possessions for a continuous period of one year at any time prior to the birth of such person; (g) a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years: Provided, That any periods of honorable service in the Armed Forces of the United States, or periods of employment with the United States Government or with an international organization as that term is defined in section 1 of the International Organizations Immunities Act (59 Stat. 669; 22 U.S.C. 288) by such citizen parent, or any periods during which such citizen parent is physically present abroad as the dependent unmarried son or daughter and a member of the household of a person (A) honorably serving with the Armed Forces of the United States, or (B) employed by the United States Government or an international organization as defined in section 1 of the International Organizations Immunities Act, may be included in order to satisfy the physical-presence requirement of this paragraph. This proviso shall be applicable to persons born on or after December 24, 1952, to the same extent as if it had become effective in its present form on that date; and 9

10 INA: ACT 309 (a) & (c) - CHILDREN BORN OUT OF WEDLOCK (a) The provisions of paragraphs (c), (d), (e), and (g) of section 301, and of paragraph (2) of section 308, shall apply as of the date of birth to a person born out of wedlock if- (1) a blood relationship between the person and the father is established by clear and convincing evidence, (2) the father had the nationality of the United States at the time of the person's birth, (3) the father (unless deceased) has agreed in writing to provide financial support for the person until the person reaches the age of 18 years, and (4) while the person is under the age of 18 years- (A) the person is legitimated under the law of the person's residence or domicile, (B) the father acknowledges paternity of the person in writing under oath, or (C) the paternity of the person is established by adjudication of a competent court. (c) Notwithstanding the provision of subsection (a) of this section, a person born, after December 23, 1952, outside the United States and out of wedlock shall be held to have acquired at birth the nationality status of his mother, if the mother had the nationality of the United States at the time of such person's birth, and if the mother had previously been physically present in the United States or one of its outlying possessions for a continuous period of one year. 22 U.S.C The following documents shall have the same force and effect as proof of United States citizenship as certificates of naturalization or of citizenship issued by the Attorney General or by a court having naturalization jurisdiction: (1) A passport, during its period of validity (if such period is the maximum period authorized by law), issued by the Secretary of State to a citizen of the United States. (2) The report, designated as a Report of Birth Abroad of a Citizen of the United States, issued by a consular officer to document a citizen born abroad. For purposes of this paragraph, the term consular officer includes any United States citizen employee of the Department of State who is designated by the Secretary of State to adjudicate nationality abroad pursuant to such regulations as the Secretary may prescribe. 10

11 22 C.F.R (a) Minors under age 16. (1) Personal appearance. Minors under 16 years of age applying for a passport must appear in person, unless the personal appearance of the minor is specifically excused by a senior passport authorizing officer, pursuant to guidance issued by the Department. In cases where personal appearance is excused, the person(s) executing the passport application on behalf of the minor shall appear in person and verify the application by oath or affirmation before a person authorized by the Secretary to administer oaths or affirmations, unless these requirements are also excused by a senior passport authorizing officer pursuant to guidance issued by the Department. (2) Execution of passport application by both parents or by each legal guardian. Except as specifically provided in this section, both parents or each of the minor's legal guardians, if any, whether applying for a passport for the first time or for a renewal, must execute the application on behalf of a minor under age 16 and provide documentary evidence of parentage or legal guardianship showing the minor's name, date and place of birth, and the names of the parent or parents or legal guardian. (3) Execution of passport application by one parent or legal guardian. A passport application may be executed on behalf of a minor under age 16 by only one parent or legal guardian if such person provides: (i) A notarized written statement or affidavit from the non-applying parent or legal guardian, if applicable, consenting to the issuance of the passport, or (ii) Documentary evidence that such person is the sole parent or has sole custody of the minor. Such evidence includes, but is not limited to, the following: (A) A birth certificate providing the minor's name, date and place of birth and the name of only the applying parent; (B) A Consular Report of Birth Abroad of a Citizen of the United States of America or a Certification of Report of Birth of a United States Citizen providing the minor's name, date and place of birth and the name of only the applying parent; (C) A copy of the death certificate for the non-applying parent or legal guardian; (D) An adoption decree showing the name of only the applying parent; (E) An order of a court of competent jurisdiction granting sole legal custody to the applying parent or legal guardian containing no travel restrictions inconsistent with issuance of the passport; or, specifically authorizing the applying parent or legal guardian to obtain a passport 11

12 for the minor, regardless of custodial arrangements; or specifically authorizing the travel of the minor with the applying parent or legal guardian; (F) An order of a court of competent jurisdiction terminating the parental rights of the nonapplying parent or declaring the non-applying parent or legal guardian to be incompetent. (G) An order of a court of competent jurisdiction providing for joint legal custody or requiring the permission of both parents or the court for important decisions will be interpreted as requiring the permission of both parents or the court, as appropriate. Notwithstanding the existence of any such court order, a passport may be issued when compelling humanitarian or emergency reasons relating to the welfare of the minor exist. (4) Execution of passport application by a person acting in loco parentis. (i) A person may apply in loco parentis on behalf of a minor under age 16 by submitting a notarized written statement or a notarized affidavit from both parents or each legal guardian, if any, specifically authorizing the application. (ii) If only one parent or legal guardian provides the notarized written statement or notarized affidavit, the applicant must provide documentary evidence that an application may be made by one parent or legal guardian, consistent with 51.28(a)(3). (5) Exigent or special family circumstances. A passport may be issued when only one parent, legal guardian or person acting in loco parentis executes the application, in cases of exigent or special family circumstances. (i) Exigent circumstances are defined as time-sensitive circumstances in which the inability of the minor to obtain a passport would jeopardize the health and safety or welfare of the minor or would result in the minor being separated from the rest of his or her traveling party. Time sensitive generally means that there is not enough time before the minor's emergency travel to obtain either the required consent of both parents/legal guardians or documentation reflecting a sole parent's/legal guardian's custody rights. (ii) Special family circumstances are defined as circumstances in which the minor's family situation makes it exceptionally difficult for one or both of the parents to execute the passport application; and/or compelling humanitarian circumstances where the minor's lack of a passport would jeopardize the health, safety, or welfare of the minor; or, pursuant to guidance issued by the Department, circumstances in which return of a minor to the jurisdiction of his or her home state or habitual residence is necessary to permit a court of competent jurisdiction to adjudicate or enforce a custody determination. A passport issued due to such special family circumstances may be limited for direct return to the United States in accordance with 51.60(e). (iii) A parent, legal guardian, or person acting in loco parentis who is applying for a passport for a minor under age 16 under this paragraph must submit a written statement with the application describing the exigent or special family circumstances he or she believes should be taken into consideration in applying an exception. 12

13 (iv) Determinations under 51.28(a)(5) must be made by a senior passport authorizing officer pursuant to guidance issued by the Department. (6) Nothing contained in this section shall prohibit any Department official adjudicating a passport application filed on behalf of a minor from requiring an applicant to submit other documentary evidence deemed necessary to establish the applying adult's entitlement to obtain a passport on behalf of a minor under the age of 16 in accordance with the provisions of this regulation. (b) Minors 16 years of age and above. (1) A minor 16 years of age and above applying for a passport must appear in person and may execute the application for a passport on his or her own behalf unless the personal appearance of the minor is specifically excused by a senior passport authorizing officer pursuant to guidance issued by the Department, or unless, in the judgment of the person before whom the application is executed, it is not advisable for the minor to execute his or her own application. In such case, it must be executed by a parent or legal guardian of the minor, or by a person in loco parentis, unless the personal appearance of the parent, legal guardian or person in loco parentis is excused by the senior passport authorizing officer pursuant to guidance issued by the Department. (2) The passport authorizing officer may at any time require a minor 16 years of age and above to submit the notarized consent of a parent, a legal guardian, or a person in loco parentis to the issuance of the passport. (c) Rules applicable to all minors-- (1) Objections. At any time prior to the issuance of a passport to a minor, the application may be disapproved and a passport may be denied upon receipt of a written objection from a parent or legal guardian of the minor, or from another party claiming authority to object, so long as the objecting party provides sufficient documentation of his or her custodial rights or other authority to object. (2) An order from a court of competent jurisdiction providing for joint legal custody or requiring the permission of both parents or the court for important decisions will be interpreted as requiring the permission of both parents or the court as appropriate. (3) The Department will consider a court of competent jurisdiction to be a U.S. state or federal court or a foreign court located in the minor's home state or place of habitual residence. (4) The Department may require that conflicts regarding custody orders, whether domestic or foreign, be settled by the appropriate court before a passport may be issued. (5) Access by parents and legal guardians to passport records for minors. Either parent or any legal guardian of a minor may upon written request obtain information regarding the application for and issuance of a passport to a minor, unless the requesting parent's parental rights have been 13

14 terminated by an order of a court of competent jurisdiction, a copy of which has been provided to the Department. The Department may deny such information to a parent or legal guardian if it determines that the minor objects to disclosure and the minor is 16 years of age or older or if the Department determines that the minor is of sufficient age and maturity to invoke his or her own privacy rights. 7 FAM Blood Relationship Essential a. The laws on acquisition of U.S. citizenship through a parent have always contemplated the existence of a blood relationship between the child and the parent(s) through whom citizenship is claimed. It is not enough that the child is presumed to be the issue of the parents' marriage by the laws of the jurisdiction where the child was born. Absent a blood relationship between the child and the parent on whose citizenship the child's own claim is based, U.S. citizenship is not acquired. The burden of proving a claim to U.S. citizenship, including blood relationship and legal relationship, where applicable, is on the person making such claim. b. Applicants must meet different standards of proof of blood relationship depending on the circumstances of their birth: (1) The statutes do not specify a standard of proof for persons claiming birth in wedlock to a U.S. citizen parent or out of wedlock to an American mother. The Department s regulations also do not explicitly establish a standard of proof. The Department applies the general standard of a preponderance of the evidence. This standard means that the evidence of blood relationship is of greater weight than the evidence to the contrary. It is credible and convincing and best accords with reason and probability. It does not depend on the volume of evidence presented. (2) Section 309(a) INA (8 U.S.C. 1409(a)), as amended on November 14, 1986, specifies that the blood relationship of a child born out of wedlock to a U.S. citizen father must be established by clear and convincing evidence. This standard generally means that the evidence must produce a firm belief in the truth of the facts asserted that is beyond a preponderance but does not reach the certainty required for proof beyond a reasonable doubt. There are no specific items of evidence that must be presented. Blood tests are not required, but may be submitted and can help resolve cases in which other available evidence is insufficient to establish the relationship. For the procedures for establishing legal relationship to or legitimation by a citizen father once blood relationship has been proven, see 7 FAM c. Children born in wedlock are generally presumed to be the issue of that marriage. This presumption is not determinative in citizenship cases, however, because an actual blood relationship to a U.S. citizen parent is required. If doubt arises that the citizen "parent" is related by blood to the child, the consular officer is expected to investigate carefully. Circumstances that might give rise to such a doubt include: (1) Conception or birth of a child when either of the alleged biological parents was married to another; (2) Naming on the birth certificate, as father and/or mother, person(s) other than the alleged biological parents; and 14

15 (3) Evidence or indications that the child was conceived at a time when the alleged father had no physical access to the mother. d. If the child was conceived or born when the mother was married to someone other than the man claiming paternity, a statement from the man to whom the mother was married disavowing paternity, a divorce or custody decree mentioning certain of her children but omitting or specifically excluding the child in question, or credible statements from neighbors or friends having knowledge of the circumstances leading up to the birth may be required as evidence bearing on actual natural paternity. e. Suggestions for developing cases that involve questionable blood relationships are given in the following sections. 7 FAM 1141 (a)(1) a. The acquisition of non-citizen U.S. nationality by birth abroad is governed by treaty or congressional legislation. The law in effect when a person was born governs that person's acquisition of non-citizen U.S. nationality, unless the legislation specifically provides otherwise such as retroactive application. See 7 FAM 1120 regarding acquisition of U.S. nationality by birth in U.S. territories and possessions. See 7 FAM 1330 regarding documentary evidence to establish a citizenship claim. (1) The national or nationals through whom a child claims non-citizen U.S. nationality must have been U.S. non-citizen nationals when the child was born and previously must have resided or been physically present in the United States or one of its outlying possessions as required by the applicable law. 15