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The Legalities of IVF Abroad

Citizenship and Cross-Border Egg Donation:
What Every Prospective Parent Needs to Know
Citizenship Basics

A child born in the United States is automatically a U.S. citizen by virtue of its birth. A child born outside of the U.S. may be able to acquire citizenship through his U.S. citizen parent. Similarly, a child adopted by a U.S. citizen may also be able to acquire U.S. citizenship. Ensuring that your child receives U.S. citizenship is important for two reasons. First, it allows your child to have all the benefits and obligations of citizenship. Second, it permits your child to freely travel into and remain in the United States.

Egg Donation Treatment Abroad
Many U.S. citizens travel to foreign countries for egg donation treatment, and then return home for the child’s birth. So long as the baby is born on U.S. soil, the child will automatically be granted U.S. citizenship at birth.

Please find below some of the most common questions asked by recipient parents all over the world.

Child Born Abroad
The situation is very different when your baby is born abroad. U.S. citizen parents need to register the birth at a U.S. Embassy in order to obtain an official record demonstrating the child’s U.S. citizenship. Obviously, the Embassy will want proof that this child is yours, in order to avoid facilitating a kidnapping or adoption fraud. You might think that the government will never know you used an egg donor, but that’s unfortunately not the case. The consular officers can and do ask about egg donation; older women and single women, in particular, seem to be targets of this line of questioning. The reason they ask is that the U.S. Department of State has taken the position that the egg donor is the mother for citizenship purposes. In other words, the Department of State seems to be under the impression that U.S. citizenship is a trait passed through DNA, just like eye color. And where an anonymous donor is used, the Department of State will automatically assume that the egg donor is not a U.S. citizen.

Father’s Role
So what about just using the father’s citizenship status to avoid this whole issue? Not so fast. Since the father and the egg donor are not married to each other, the government considers the child to have been born to unwed parents. Therefore, the father must petition the government as an unwed father to be permitted to transfer his citizenship to the child. As part of such a petition, the father must agree to provide financial support for the child up to the age of 18 and legal paternity needs to be established for the child. The father must also meet certain requirements relating to physical presence in the United States.

So what happens if the couple divorces during the pregnancy, and the father no longer wants to accept responsibility for the child? Consider that the father could refuse to petition for citizenship, refuse to agree to provide financial support for the child, and refuse to cooperate with the establishment of paternity. While this may sound farfetched, reproductive lawyers know of other situations where fathers have tried to disclaim paternity in the course of a divorce. Thus the mother may well find herself in the devastating scenario of being unable to establish U.S. citizenship for her child through the father.

Even worse, some clinics abroad have substituted donor sperm for the father’s sperm. In that situation, where the father’s DNA does not prove his paternity, he will be merely considered a sperm donor and not permitted to petition to transmit his citizenship. Parents in such situations won’t be comforted by knowing that fathers through sperm donation are treated equally poorly by the federal government as mothers through egg donation.

What About Adoption?
In some situations, the mother might be able to adopt the child to transmit her citizenship, but her ability to adopt will depend on the applicable laws. This can be especially problematic if the adoption needs to happen in a country with restrictive adoption laws, such as those only permitting adoption by persons of a particular marital status, citizenship, religion or sexual orientation. Similarly, a court might refuse to grant the adoption because the mother is already considered the legal mother of the child under the applicable law. Even when an adoption is granted, there are additional requirements that relate to an adoptive parent’s ability to transmit citizenship to her child.

What About Involving the Egg Donor?
Trying to get the egg donor to petition to transmit her citizenship to the child is another option, but one filled with complications. Can she be identified? Is she a U.S. citizen? Can she be located right now? Is she willing to participate in the process? Is she willing to sign paperwork identifying her as the mother of this child? Even if the donor is willing to participate, opening the door to the egg donor asserting any such parental rights is a dangerous path to take.

Donor Embryos/Double Donor Cycles
With donor embryos or double donor cycles using both donor eggs and donor sperm, where neither parent provides the DNA, it is not possible for the parents to prove a genetic link. Adoption may or may not be possible, depending on the applicable laws. And trying to get the embryo donors or sperm donor to transmit their own U.S. citizenship to the child is fraught with the same problems as involving the egg donor in the process.

Gestational Carriers (Surrogates)
The same citizenship rules apply when a child is born to a gestational carrier. In fact, the carrier’s citizenship status is irrelevant to the U.S. Department of State’s determination of citizenship.

What if My Child Wants to Run for President When She Grows Up?
It’s important to recognize that citizenship obtained at birth is different than citizenship obtained subsequently. The U.S. Constitution only permits a “natural born citizen” to serve as President. Depending on the route used to establish your child’s citizenship, she may not qualify as a natural born citizen.

Why Does the U.S. Department of State Take This Position?
The underlying laws at issue were written back before egg donation was even conceivable, so there are no laws specifically addressing egg donation. The Department of State has thus interpreted the existing laws as requiring a genetic connection for the transmission of citizenship. This interpretation is a reasonably good fit for many gestational carrier matters, where the prospective parents provide the egg and sperm. However, this interpretation is a terrible fit for egg donation arrangements, because it fails to recognize the obvious—that a woman is the biological mother of the child that she gestates.

Courts around the United States have recognized (albeit in different contexts) that a woman can be biologically related to a child by gestation or genetics, and that modern technology has allowed these two roles to be split. These courts have consistently recognized the legal rights of women to be biological and, thus, legal parents of children they have gestated via an egg donation arrangement. Even, the Department of State has acknowledged that a mother via egg donation can be the legal mother of the child for all other purposes. Nonetheless, the Department has been unrelenting in its position.

Bringing Baby Home
U.S. citizenship, the issuance of a U.S. passport, and permission to enter and reside in the United States are three distinct, but interrelated, concepts. In many cases, it is possible for a non-U.S. citizen child to be permitted to enter and live in the United States with his parents. For example, a child may qualify for entry as a step-child of a U.S. citizen. However, there are other situations in which children born abroad via third-party reproduction have been unable to get the necessary travel documents to return home with their parents. An additional layer of complexity is that the country of birth may also have requirements governing your child’s ability to leave the country.

What Can Prospective Parents Pursuing Egg Donation Do?
The government has been very persistent in enforcing these provisions regarding egg donor conceived children. Until this policy is changed, prospective parents via egg donation need to consult with an attorney prior to undergoing an egg donation cycle in order to understand their legal options.

NOTE: The information provided is for general information only and should not be construed as legal advice or the formation of an attorney/client relationship. Please don’t attempt to solve your individual problems based on this information as slight changes in factual situations may require a material variance in the applicable legal advice.

Catherine Tucker is a Massachusetts and New Hampshire lawyer who helps clients build their families through egg, sperm and embryo donation and gestational surrogacy. Catherine serves on the Executive Council of the American Bar Association’s Assisted Reproductive Technologies Committee. She is also an active member of RESOLVE New England, the New Hampshire Bar Association’s Family Law Section, the American Society for Reproductive Medicine’s Legal Professional Group, and the Embryo Donation Network.

Prior to opening her own firm, Catherine served as a criminal prosecutor at the New Hampshire Attorney General’s Office and the Suffolk County District Attorney’s Office in Boston, where she achieved landmark verdicts in complex child and family abuse cases. Catherine holds a B.A. from Dartmouth College (1993), an M.S. from Northeastern University (1995), and a J.D. cum laude from Suffolk University Law School (1999). Catherine is the mother of twins, who were conceived after six cycles of IVF.

You can read more about Catherine and her practice at www.tuckerlegal.com. Catherine also blogs about fertility related matters at www.fertilitylawmatters.com. She can be reached directly at catherine@tuckerlegal.com.

i There are some minor exceptions, such as those relating to children born to foreign diplomats.
ii Certain other requirements pertaining to the U.S. citizen parent’s residence and presence in the U.S. also apply.

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