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Is the child of a non-US surrogate an American citizen?

 Posted on June 01, 2021 in naturalization & citizenship

The State Department recently released a major policy clarification related to international adoption and citizenship. According to the release, the State Department will now approve US citizenship to children born in other countries via surrogacy or in vitro fertilization.

The clarification represents a major change in policy stance under the Biden Administration. According to NPR, previously the government considered a child born outside of the US to a surrogate to be “out of wedlock” even if the American parents held married status.

Mounting lawsuits

Over the past few years, the government has fielded several lawsuits on this issue, particularly from same-sex parents who rely on surrogacy or in vitro fertilization to reproduce. There were two major cases that the Trump Administration lost regarding this.

The first case involved a federal judge ruling that the State Department must award the daughter of a same-sex couple US citizenship because both parents were American even though the child was born in Canada. The second case concerned twin boys born in Canada. Previously, the state department had given one child American citizenship because the twin had a genetic connection to his US-born parent. The other twin only had a genetic connection to his Israeli-born parent, and thus the State Department originally denied citizenship. Because the parents held married status at the time that the surrogate conceived the twins, the courts found that the State Department acted in error.

Moving toward the future

The changes in these laws represent a shift in what it means to be an American citizen and an American family. Particularly for same-sex couples, this change makes it more possible to grow and start young American families.

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