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Andrea L. Johnson, CLS ’12, Sexuality and Gender Law Clinic student and 2011 Super Lawyers Pro Bono Award Recipient, discusses the USA Today article on IVF and immigration law and the Clinic’s work with the ACLU to draft model “parentage” legislation:

Earlier this month, USA Today published an article describing the absurd situation in which American women who have given birth with the assistance of In Vitro Fertilization (IVF) while abroad find themselves: if they can’t prove to American immigration authorities that either the sperm or the egg came from an American citizen, U.S. citizenship cannot pass on to their child. The article actually misstates the rule slightly: a U.S. citizen parent must have a biological connection to a child in order to transmit citizenship to the child at birth. In other words, it is not enough for the sperm or the egg to come from any American citizen—as the article suggests—the gamete must come from the U.S. citizen parent who seeks to transmit his or her citizenship.

This means that a whole group of mothers* who, quite naturally, assume that the child they choose to bring into this world and spend 9 months carrying will share their citizenship at birth, will not be able to transmit their citizenship. Specifically, the law denies any U.S. citizen mother who conceives through IVF with a donated egg (plus sperm not from a U.S. citizen husband) equal citizenship benefits.  This especially impacts infertile U.S. citizen mothers who are single or married to a non-citizen husband and U.S. citizen mothers whose citizen husbands are also infertile. It also impacts a lesbian couple in which the non-citizen partner donates her egg to her U.S. citizen partner to carry. Yet, U.S. citizen parents who adopt children abroad or are able to use their own gametes for IVF can transfer their citizenship to their children at birth. All of these parents want to bring these children into the world; the only thing differentiating them is genetics.

To what extent do genetics matter? Last spring, the Columbia Law School Sexuality and Gender Law Clinic worked with the ACLU to draft model “parentage” legislation that would extend parental rights to families created with the assistance of alternative reproductive technologies, like IVF, alternative insemination, and surrogacy. It was a challenging undertaking and at its heart laid the question: Does genetics or intent make a parent? Certainly both play a role, but which should we privilege and in what circumstances? Although this area of law is fraught with tensions, most states that have considered the issue seem to agree that, in the absence of a clear surrogacy agreement (and in some states even with a surrogacy agreement), a woman who carries and delivers a child is presumed to be that  child’s parent, regardless of the child’s genetics.  In such a situation, we privilege intent over genetics, especially where the child is created from donated gametes from individuals who have knowingly and voluntarily waived their parental rights before donating to a fertility clinic, as was the case for the woman featured in the USA Today article.

If genetics are not needed in most states to establish the parentage of a mother who conceived through IVF, why are they necessary to make the far less fundamental determination of transmission of citizenship? This question is especially perplexing in light of cases like Nguyen v. INS (recently affirmed by Flores-Villar v. United States) that emphasize the importance of functional parentage in determining whether citizenship may be transmitted through an unwed father. While these two cases are deeply disturbing for their reaffirmation of discriminatory gender stereotypes (and will hopefully one day be overturned), they are illuminating in so far as they reveal what the Court finds to be the basis for transmitting citizenship to a child. In Nguyen, the Court’s concern was whether immigration authorities could be certain that a child was indeed a U.S. citizen father’s child and whether the child had a sufficient connection to his father and, by extension, the United States, to warrant transmitting the father’s citizenship. The Court was ultimately seeking to ascertain a legal parent-child legal relationship. Neither of these concerns are at stake in the case of a U.S. citizen woman who has conceived through IVF with a donated egg and is legally recognized as the mother.

This rule is yet another example of how U.S. immigration law fails to meet the needs of modern American families. As with the U.S. government’s failure to extend family immigration benefits to same-sex partners, this rule discriminates against parents who create families with assistance of alternative reproductive technologies and furthers the distress of families who suffer from infertility. The good news is that the rule is not written into the Immigration and Nationality Act (INA), but is the result of a State Department interpretation of INA §§ 301 and 309. Immigration and family law advocates should call on the State Department to update their interpretation so that those legally deemed parents can transmit their citizenship to their children regardless of genetics.

*Fathers are also hurt by this rule. Specifically, single U.S. citizen fathers and U.S. citizen fathers who are married to a non-citizen wife or husband who are infertile or otherwise will not be donating their sperm to their wife or surrogate will not be able to pass their citizenship to their child at birth.

6 comments

  1. New blog post from Andrea L. Johnson ’12, 2011 Super Lawyers Pro Bono Award Recipient, discussing IVF & immigration: http://t.co/sunJwN5x

  2. […] post on the Columbia’s Gender & Sexuality Law Blog is incredibly relevant to our class–it’s about the citizenship status of children […]

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