Can Regulating Surrogacy Prevent Statelessness?

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Scholar proposes regulatory solution to ensure that children born from surrogate mothers have clearly established citizenship.

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How can a child be born without a nationality?

Children born in the United States become U.S. citizens just by being born on U.S. soil. But some countries, like India, make children’s citizenship contingent upon their parents’ citizenship rather than where the child is born. When children are born through international surrogacy arrangements, ambiguous and varied citizenship requirements can leave those children without clear citizenship or nationality.

In a recent note, attorney Laura Rose Golden argues that that the U.S. federal government should address the potential for statelessness through surrogacy through a revised regulatory scheme. Under current federal policy, U.S. citizens seeking to have children through international surrogacy arrangements risk subjecting those children to the “legal limbo” of ambiguous citizenship.

To understand how statelessness occurs, consider the case of Baby Manji. Manji was born in 2008, after her Japanese intended parents, Ikufumi and Yuki Yamada, entered into a contract with an Indian gestational surrogate named Pritiben Mehta. Manji was conceived using her intended father’s sperm and an anonymous egg donor. The Yamadas divorced one month prior to Manji’s birth in an agreement that left the father, Ikufumi Yamada, with sole custody of Manji.

When Yamada arrived in India to bring Manji to his home in Japan, the Japanese Embassy refused to issue Manji a Japanese passport. The Japanese Civil Code did not allow for the transmission of Yamada’s citizenship to a surrogate child born abroad, and only recognized the woman who gave birth to Manji as her mother. Under Japanese law, Manji would have been an Indian citizen.

The Indian government, however, refused to issue Manji a birth certificate. India required that at least one parent be an Indian citizen for a child to have Indian citizenship at birth. Under Indian law, though, it was not clear that Mehta was Manji’s clear, legal mother, since Mehta’s contractual responsibilities ended when the baby was born.

With no legally recognized mother to guarantee her citizenship, Manji was born stateless.

Baby Manji’s story demonstrates that this area of the $6 billion surrogacy industry needs regulation, Golden argues. Many nations have already addressed international surrogacy arrangements in a variety of ways, including outright bans on commercial surrogacy and standards governing who can make these agreements.

In the United States, federal agencies have taken steps to address international surrogacy. In 2014, the United States Customs and Immigration Service (USCIS) and the U.S. Department of State amended their definitions of “mother” and “parent” to include people who became pregnant using assisted reproductive technology and have no genetic connection to the child they carry. Expanding these definitions allowed children born to gestational surrogates in the United States to obtain U.S. citizenship in the event that the child’s intended parents could not secure the child citizenship in their home country.

Despite these changes, a recent case involving Georgia parents suggests that additional regulation could benefit American parents. Both Derek Mize and Jordan Gregg, a married gay couple, are U.S. citizens, although Gregg is a dual citizen of the United Kingdom. Their daughter, Simone, was conceived using Gregg’s sperm and was born to a surrogate in the U.K. in 2018. A year later, the family learned that Simone was not eligible for U.S. citizenship because her genetic father, Gregg, did not meet the residency requirements set forth in the Immigration and Nationality Act (INA).

Golden asserts that the standardization of international surrogacy regulations is not a feasible goal. Instead, she maintains that a more flexible interpretation of existing U.S. law is better suited to regulate international surrogacy effectively.

Golden contends that the State Department could further expand the definition of parenthood under the INA to include intended parents. Currently, under the INA, children born in other countries can secure U.S. citizenship at birth if one of their biological parents satisfies the residency requirements set forth in the INA. Practically, this means that children can be born with U.S. citizenship if their genetic father, genetic mother, or gestational mother is a U.S. citizen.

Golden argues for an interpretation that focuses on parental intent rather than a parent’s genetic relationship with a child. This framework is consistent judicial determinations of parenthood, as courts tend to privilege intended relationships over genetic relationships when determining parental rights. According to Golden, the federal government, too, could privilege intended familial relationships over biological ties when determining citizenship.

Furthermore, Golden recommends that the State Department supplement a more flexible interpretation of the INA with better communication with potential parents.

Currently, the State Department advises potential parents to consult an immigration attorney before pursuing international surrogacy “because of the complexity that may be involved in having a child abroad.” Golden, however, asserts that the USCIS should also provide notice to potential parents about legal issues that may arise from international surrogacy arrangements.

With Golden’s suggested interpretation of the INA, baby Simone could have obtained U.S. citizenship because one of her intended parents, Mize, met the INA’s requirements, despite the fact that she and Mize shared no genetic ties. Furthermore, had the federal government provided more information about the INA’s requirements, Mize and Gregg may have pursued an alternative arrangement or better prepared for the arrival of their child.