U.S. citizen parents exploring options to use Assisted Reproductive Technology (ART) and/or a foreign surrogate to give birth to a child outside the U.S. need to consider the immigration implications of such a decision. The Department of State interprets the Immigration and Nationality Act 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. If the U.S. citizen parents do not have a biological connection to the child, the child will not be a U.S. citizen at birth.
In surrogacy cases, the U.S. citizen parent must be the sperm or the egg donor in order to transmit U.S. citizenship. Genetic material from anonymous donors is presumed to be from non-U.S. citizens. The best evidence available to parents to show their biological connection to a child born to a foreign surrogate, is DNA testing. However, these tests cannot be done until after the child is born.
These portions of the law were written decades ago – back when surrogacy and fertility treatments were less common, and certain techniques were unheard of. The U.S. State Department is reviewing these policies and may revise them at some point. However, your best bet now is to consult an experienced immigration attorney before making any plans.
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