Answer Man: Assisted Reproductive Technology and U.S. Immigration Law

By Gary Endelman

Dear Answer Man:

Can we talk? My parents always told me to keep these kinds of things within the family but I regard you as an honorary blood brother so I guess it is OK. Here’s the deal. My husband and I were born in Baltimore and attended college there. We tried for years to have a baby with no luck. Last year, we moved to Israel. A family friend told us that Israel had doctors who used advanced medical techniques that might help so we went to Tel Aviv where a zygote was surgically implanted in my womb. We did not know who the egg or sperm donors were but I had few worries since this was a very well-known hospital that enforced strict criteria. Thankfully, I delivered a healthy baby boy. Knowing the importance of documenting my son’s American citizenship, I went right to the US Consulate and applied for a passport. Then the nightmare began! An embassy official wanted to know if I got pregnant at a fertility clinic. I said “yes,”, not knowing the high price of honesty, only to be informed to my amazement that my son was not eligible for citizenship unless I could prove that the egg or sperm used to create the embryo came from an American citizen. The clinic had ironclad rules on confidentiality, and I had sworn to uphold them. Even though I carried my son for nine months, despite the fact that my husband and I were listed as his parents on his birth certificate, I had no way to pass on American citizenship to my child. Can this be the law?

I am ready to give up. Had I had gone back to Baltimore to give birth, my son would automatically have received US citizenship and an Orioles cap. Now what?

You are my last hope.

Tormented in Tel Aviv.

****

Dear Tormented:

I feel your pain. If it helps any, you are not alone. The National Center of Health Statistics at the Centers for Disease Control reports that, as of 2002, infertility affected 7.3 million women and their partners in the United States — about 12 % of the reproductive age population. http://www.cdc.gov/nchs/data/series/sr_23/sr23_025.pdf. By 2007, Assisted Reproductive Technology (ART) amounted to some 57,000 births per year, over 1% of all births in the United States. CDC, U.S. Department of Health and Human Services, Assisted Reproductive Technology Success Rates: National Summary and Fertility Clinic Reports1, 15 (2007), available at http://www.cdc.gov/art. Resort to ART doubled between 2000 and 2010. Victoria Degtyareva, Defining Family in Immigration Law: Accounting for Nontraditional Families in Citizenship By Descent, 120 Yale L.J. 862, 870 (Jan. 2011).

The real problem is that U.S. immigration law has not kept pace with medical science. See Bernard Friedland & Valerie Epps, The Changing Family and the U.S. Immigration Laws: The Impact of Medical Reproductive Technology on the Immigration and Nationality Act’s Definition of the Family, 11 Geo.Immigr. L.J. 429 (1997). Enacted in the 1950’s, “the relevant INA provisions do not provide clear guidance regarding who will be recognized as parents of children conceived through ART or carried and delivered by surrogates, rather than intended mothers.” Scott Titshaw, A Modest Proposal: To Deport the Children of Gay Citizens, & etc: Immigration Law, the Defense of Marriage Act and the Children of Same Sex Couples, 25 Geo. Immigr. L.J. 407, 419 (2011), also available at http://works.bepress.com/scott_titshaw/3

The State Department is trying to get up-to-date and its guidance on citizenship and ART is being developed. Someday soon, 7 FAM 1160, currently unassigned, will be available for all of us to read. Until then, questions like yours are referred to the Bureau of Consular Affairs, Directorate of Overseas Citizens Services, Office of the Legal Adviser for an advisory opinion. 7 FAM 1423.

Interestingly, while a claim to U.S. citizenship raised as a defense against removal is something that federal courts can consider, 8 U.S.C. § 1252(b)(5), administrative review is available in denial of an application for a consular report of birth. 7 FAM 1445.9(b). If your child were in the United States, the Attorney General would be the authority to judge his claim to citizenship, 8 USC § 1103, but, because you are still in Israel, the Department of State is presumed to have expertise on this same question. 8 U.S.C. § 1104. While a consular officer will naturally be guided by what the Foreign Affairs Manual says, a federal court would not necessarily have to defer to its interpretations, Christensen v. Harris Cnty., 529 U.S. 576, 120 S Ct. 1655, 1662 (2000), though the FAM would certainly be “entitled to respect” but only to the degree that it possessed “the power to persuade.” Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944). Once you leave the arena of international affairs, courts do not presume that the State Department enjoys special talent or extra expertise. Kaczmarcyzk v INS, 933 F.2d 588, 494 (7th Cir. 1991).

Right now, the U.S. State Department takes the firm view that there can be no transmission of American citizenship absent a genetic connection or biological link with at least one citizen parent. The problem is that this genetic nexus may not exist if an infertile woman conceives through the use of assisted reproductive technology. Though designed to prevent abusive citizenship claims, innocent parents who want to pass on American citizenship get caught unaware in a legal vise. Like you and your husband, not knowing the rules, they pay a very high price for telling the truth. Hard to believe, the State Department insists that “the U.S. citizen parent must be the sperm or the egg donor in order to transmit U.S. citizenship to a child conceived through ART.” http://travel.state.gov > Law & Policy > Citizenship and Nationality > Important Information for U.S. Citizens Considering the Use of Assisted Reproductive Technology. It really does not matter who gives birth to the child; use of foreign surrogates does not count. 7 FAM 1131.4-2(c). Here is the rule: “If the child is not biologically related to a U.S. citizen parent, the child will not acquire U.S. citizenship automatically at birth.” Id. Because you were not his biological parents, for purposes of passing on U.S. citizenship, he is not deemed to be your child. The State of Maryland may presume that he is part of your family but the State Department will not. 7 FAM 1131.4-1(a). While “legal relationships between parents and children are typically governed by state law,” Fierro v. Reno, 217 F.3d 1, 4 (1st Cir. 2000), even in citizenship matters, such is not the case where the child was conceived through ART.

If a genetic nexus is established, the law then wants to know is whether the egg donor and the sperm donor were married. Marriage determines what section of the Immigration and Nationality Act will apply. 7 FAM 1131.4-2. If the egg and sperm donors are married, INA § 301 applies. If not, look to INA § 309 for out of wedlock children, a tougher test to satisfy. http://travel.state.gov > Law & Policy > Citizenship and Nationality > Important Information for U.S. Citizens Considering the Use of Assisted Reproductive Technology. Same sex couples find their children covered by INA § 309. 7 FAM 1446.2-2 at c (4)(d). In fact, a Consul that looks at two men or women named as parents on a birth certificate is more likely to start asking questions about possible use of ART. Scott Titshaw, Is Your Test Tube Baby a U.S. Citizen, 2 VOICE 16,18 (November/December 2011). A lesbian couple where the non-citizen partner donates her egg to a U.S. citizen partner following in vitro fertilization may also find themselves in a similar genetic twilight zone. Vina Tran, Genetic Citizenship: Time to Get Rid of A(nother) Discriminatory Immigration Law, available at http://blogs.law.columbia.edu/genderandsexualitylawblog/2012/0. (posted 04/02/2012). When such U.S. parents cannot return with their children to America, do they not become exiles, citizens without a country? Scott Titshaw, Sorry Ma’am, Your Baby Is An Alien: Outdated Immigration Rules and Assisted Reproductive Technology, 12 Fla .Coastal L. Rev.47, 56 n.19 (Fall 2010).

In some cases, the Answer Man has heard that DNA tests of the newborn are performed. 7 FAM 1120. This is the reflexive State Department response when a U.S. Consul must adjudicate a request for a Consular Report of Birth Abroad and the child was conceived through ART. The purpose of such tests is to document genetic parentage. It takes about two weeks for a DNA kit to arrive at post and another 2 weeks for the results. Prudent parents who know or suspect that the Consulate will require DNA tests can order them in advance; results are emailed by the laboratory directly to the Consulate. See, e.g., http://hyderabad.usconsulate.gov/reporting_births_abroad_and_citizenship.html; http://ukraine.usembassy.gov/report-birth-abroad.html

While I know you find it amazing, your son would be considered to be born in wedlock only if he was “the genetic issue of the married couple.” http://travel.state.gov/law/citizenship/citizenship_html. The citizenship of the woman who delivers the baby is irrelevant when determining the transfer of citizenship. 7 FAM 1131.4-2. Even if local law dictates that the gestational carrier be listed as the mother on the birth certificate, U.S. consular officials are directed to determine the identity of the genetic parents. 7 FAM 1131.4-1. The blood relationship must be shown by a preponderance of the evidence. 7 FAM 1131.4­1(b)(1). Hard though it is to believe, whenever the identity of the egg or sperm donor is anonymous, as with your case, the U.S. Consulate assumes that said donor is not a U.S. citizen. 7 FAM 1446.2-2(c )(4).

There is a very close relationship between the marital status of the birth parents and the strength of the child’s claim to U.S. citizenship. 7 FAM 1445.5-7. Interestingly, if there is a genetic bridge to a U.S. citizen father, but not to his wife, the State Department considers the child to be born out of wedlock subject to the more rigorous transmission requirements of INA § 309(a) rather than the more relaxed criteria of INA § 301(c) that would normally apply to two U.S. citizen parents where one had a prior residence in the United States before the child’s birth. 7 FAM 1445.5-7. This unyielding insistence on a genetic link uniting U.S. fathers with their children was not always a part of immigration law; indeed, not until 1986 did Congress modify INA § 309 to canonize the primacy of blood. Scott Titshaw, Sorry Ma’am, Your Baby Is An Alien: Outdated Immigration Rules and Assisted Reproductive Technology, 12 Fla. Coastal. Rev. 47,126 n.398,399 (Fall 2010). Unfortunately, the Supreme Court has no problem with making it harder for fathers to transmit U.S. citizenship than for mothers. Miller v. Albright, 523 U.S. 420 (1998); Nguyen v. INS, 533 53 (2001). Now, since your son was born in wedlock, the Answer Man is not sure that this blood linkage really should apply here. Nguyen v. INS, 533 at 58.

If your egg had been fertilized by an unidentified sperm donor, your son might yet have a claim to U.S. citizenship under INA § 309(c) since you have at least one year continuous physical presence in the United States prior to his birth. 7 FAM 1445.5-6. I hope you will not be upset by the Consulate telling you under these facts that your son was born out of wedlock! There is even one more wrinkle to think about. Say your husband was not a U.S. citizen but donated his sperm and this was used to fertilize your egg in vitro after which it was implanted back into you. In this event, the law says that your son’s claim arises under INA § 301(g) since we have one U.S. citizen parent only who must have five years physical presence in the U.S., two coming after you turned fourteen. Now that is no problem for you but, even if it was, the citizenship claim still might survive thanks to the Child Citizenship Act of 2000, now codified as INA § 322, assuming you had a living U.S. citizen grandparent.

Too bad that you do not reside in California or Arizona. Then the Ninth Circuit could rescue you. Here, even in a traditional birth, the blood relationship would no longer be paramount and courts would not feel the need to defer to the Foreign Affairs Manual as the last word on the subject. See Solis-Espinoza v. Gonzales, 401 F.3d 1090 (9th Cir. 2005); Scales v INS, 232 F. 3d 1159 (2000). Surprisingly, neither case dealt with ART. In Solis-Espinoza, the Ninth Circuit found that a child born in Mexico but raised in the United States by his green card father and American stepmother, after having been abandoned by his Mexican birth mother, was legitimate under California law and therefore did not have to show any blood ties to a U.S. citizen to sustain his claim to citizenship. Only in out of wedlock cases arising under INA § 309 would such proof have to be shown. Solis-Espinoza stood on the shoulders of Scales v. INS where a convicted felon born in the Philippines to his Philippines citizen mother who was already pregnant when she married his American serviceman father found a friendly audience even though there was no biological connection with any U.S. parent. What about the FAM? Though he found himself in a deportation courtroom following a conviction for intent to distribute cocaine, Scales had the happy fortune to have moved to the Lone Star State, adopted home of the Answer Man himself, at the tender age of two where his American father raised him as his own son, though there was no formal adoption. Since he was already in the United States, the Ninth Circuit really was not too concerned with what the State Department thought. Lucky for him that his parents married for that makes all the difference; absent the marriage, a child born outside the United States under similar circumstances would not have derived American citizenship. See, e.g., Matter of Guzman-Gomez, 24 I. & N. Dec. 824 (BIA 2009); Martinez-Madera v. Holder, 559 F.3d 937 (9th Cir. 2009). If your Mexican parents were unwed at the time of your birth, and your mother subsequently marries an American who adopts you, unless you live within the jurisdiction of the Ninth Circuit, your citizenship claim will not survive. Marquez v. Gonzales, 455 F.3d 548 (5th Cir. 2006).

How, you might wonder does the American approach compare with that taken by other nations? Not so bad it turns out. Let’s take a look.

In Israel, the woman who physically gives birth, not the egg donor, is considered the mother, something that is in keeping with the traditional Jewish view. The egg donor is anonymous and has no rights. The sperm donor would be treated similarly. Tourists cannot donate eggs; both the patient and the recipient must be Israeli citizens. Readers fluent in Hebrew may read the full text of the Israeli statute at: http://www.knesset.gov.il/Laws/Data/law/2242/2242.pdf .Vigorous advocacy by CHEN—the Patient Fertility Association under the leadership of Ofra Balaban—played a key role in the law’s recent adoption. The email for the Israeli association for those who want to contact is amotat_c@netvision.net.il.

In India, where the reproductive technology trade generates some $450 million in annual revenue, a new law finally provides some legal protection for young, impoverished women who previously had none. http://www.nytimes.com/2011/10/05/world/asia/05iht-letter05.html. In addition to the establishment of an assisted reproductive technology bank, the law requires foreigners who come to India for this purpose to document that their home countries would grant citizenship to the child born through such surrogate arrangements. http://www.icmr.nic.in/guide/ART%20REGULATION%20Draft%20Bill1.pdf. For your purposes, Tormented, look at Chapter VII, Rights and Duties of Patients, Donors , Surrogates and Children, pp. 31-32. This was an important step forward designed to avoid a legal no-man’s land where neither India nor the home country of the parents would issue a passport to the unfortunate child. http://articles.timesofindia.indiatimes.com/2009-12-01/india/28087428_1_surrogate-twins-surrogacy-agreement-surrogate-mother

In Japan, the Civil Code, much like our INA, simply did not consider the impact of ART so that the woman who actually delivers the child is its mother. In 2007, the Supreme Court in Japan ruled against a married Japanese couple in Baby Manji’s case where, after going to India, the husband’s sperm fertilized a donated egg that was then implanted in the womb of an Indian surrogate. The Japanese consulate declined to issue a passport since traditional Japanese law recognized the Indian surrogate as the legal mother. Marcelo de Alcantara, Surrogacy in Japan: Legal Implications for Parentage and Citizenship, 48 Fam.Ct. Rev.417, 421 (July, 2010). That same year, the Supreme Court of Japan similarly refused to honor the judgment of a Nevada tribunal that ordered the names of a Japanese couple to be listed as the parents on their baby’s birth certificate after a Nevada surrogate with whom they had contracted gave birth in a Nevada hospital. Realizing that they had entered into terra incognita, the Supreme Court concluded that to give effect to ART in this context would violate public policy as expressed in the Civil Code. Id. at 422. Now just think about this for a second, Tormented. If the situation had been reversed, and an American couple had hired a Japanese surrogate, under the State Department’s line of reasoning, it seems clear that the end result would have upheld the acquisition of citizenship since the Japanese surrogate would have been dismissed as a legal irrelevancy. Id. at 423.

If there is one place on earth Tormented where your cry for justice would likely be heard, one would assume that it would be in Europe. Right? Well, maybe not. There are no international surrogacy arrangements so each country gets to make up its own rules. Italy bans the use of donated eggs or sperms. Britain (and Canada) only permit egg donation where no money changes hands. http://www.slate.com/articles/double_x/doublex/2012/03/fertility_tourism_the_perils_of_having_a_baby_abroad_with_assisted_reproduction_technology_.html. In the United Kingdom, in an echo of the U.S. perspective, the child must be genetically linked to at least one of what the Human Fertilization and Embryology Act of 1990 charmingly calls “the commissioning couple.” No profit beyond reimbursement of “reasonably incurred expenses” is sanctioned. http://www.ukba.homeoffice.gov.uk/sitecontent/documents/residency/Intercountry-surrogacy-leaflet. Surrogacy agreements are not enforceable as valid contracts. http://www.legislation.gov.uk/ukpga/1990/37/contents. The UK does not disallow the use of ART, even with same sex couples, so long as there is no profit made. It is not egg or sperm donation, but commerce, that triggers public condemnation. http://www.dh.gov.uk/en/Publicationsandstatistics/Legislation/Actsandbills/DH _080211

France steadfastly refuses to recognize foreign surrogacy arrangements. http://conflictoflaws.net/2 011/surrogacy-agreements-violate-french-public-policy/. In one recent case, a French court held that, under Article 16-7 of the Civil Code, a baby born in Minnesota who had been abandoned by his American surrogate mother but adopted by the French couple who had contracted with her could not be registered as a French citizen. Interestingly, even before the blessed event, the California Supreme Court ruled that only the French litigants could be listed as parents on the San Diego birth certificate. http://conflictoflaws.net/2007/flying-to-california-to-bypass-the-french­-ban-on-surrogacy-update/ The French invalidation of surrogacy dates back to 1994; the fact that couple had flown to San Diego for the express purpose of evading French public policy did not go over too well. http://conflictoflaws.net/2007/flying-to-california-to-bypass-the-french-ban-on-surrogacy.

Germany is no less unfriendly to ART. Going beyond the UK, Germany will not tolerate surrogacy or egg donation. http://www.bionews.org.uk/page_104661.asp. Perhaps due to the tragic Nazi experience with eugenics, German law did not allow pre-implantation genetic testing until July 2011 and even then only in the case of  major genetic malfunction of severe embryo defects that will cause miscarriage or stillbirth.  If you can read German, Tormented, here is the text of the German law. http://www.gesetze-im-internet.de/eschg/BJNR027460990.html. Germany will not recognize surrogate motherhoods and incredulous German parents who resort in all good faith to foreign surrogacy as a response to infertility can find themselves in the unbelievable position of having to adopt their own children! http://www.eggdonor.com/blog/2010/01/18/germany­refuses-to-grant-visas-to-twins-born-to-an-indian-surrogate-adoption-next/. In Israel, until very recently, the same insanity prevailed; fortunately, this past March, a Tel Aviv court wisely ruled that a biological mother should not be compelled against her will to adopt her own children simply because a surrogate using her donated eggs gave birth to them. http://www.bioedge.org/index.php/bioethics/bioethics_article/9973.

Austria, perhaps influenced by the German model, likewise banned surrogate motherhood in 1992; however, as a sign of slow yet real change, the Austrian Constitutional Court this past December upheld the claim to Austrian citizenship brought on behalf of two children by their Austrian mother and Italian father after the Austrian Justice Ministry argued that the children born in America to a surrogate could not be recognized as Austrian citizens. http://www.ukrainiansurrogates.com/constitutional-court-of-austria-confirms-austrian-citizenship-for-children-born-through-surrogacy; http://eudo-citizenship.eu/news/ citizenship-news/565-constitutional-court-confirms­austrian-citizenship-for-children-born-by-american-surrogate-mother. To give you some idea of what a seismic shift this was, Tormented, consider the November 2011 decision by the European Court of Human Rights in the case of S.H. et al. v. Austria, where the Austrian ban on ART was held not  to violate the European Convention on Human Rights. http://www.bionews.org.uk/page_111556.asp. The full English language text of that opinion can be read at http://hudoc.echr.coe.int/sites/eng/pages/search.aspx#{“dmdocnumber”:[“894729″],”itemid”:[“001-107325″]}. By contrast, this same tribunal, when confronted with the refusal of UK prison authorities to provide a prisoner and his wife with appropriate technical assistance for artificial insemination, ruled that the right to become genetic parents was guaranteed by Article 9 of the European Convention of Human Rights. Dickson v. United Kingdom, available at http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-83788#{“itemid”:[“001-83788″]}.

Sperm donation for artificial procreation is disallowed in Italy, Lithuania and Turkey. These nations also ban egg donation as do Croatia and Switzerland. S.H. et al. v. Austria, http://hudoc.echr.coe.int/sites/eng/pages/search.aspx#{“dmdocnumber”:[“894729″],”itemid”:[“001-107325″]} at 7. As the December 2011 Austrian high court ruling suggests, some parts of Europe are slowly changing their historic antagonism towards ART. Denmark, France and Sweden, who used to ban egg and sperm donation, now allow it. Since 2003, Norway sanctions sperm donation for in vitro fertilization, but still disallows egg donation. Since 2007, if done under a doctor’s care, Finland allows egg and sperm donation. Id.  See also http://www.bioedge.org/index.php/bioethics/bioethics_article/9843 for a quick overview. Though obviously not part of the European land mass, Australia allows ART but, on a state level, closely regulates it subject to strict licensing. http://www.nhmrc.gov.au/health-ethics/australian-health-ethics-committee-ahec/assisted-reproductive-technology-art/assisted-. Interestingly, Catholic Spain not only allows egg donation but actually allows the donor to be reimbursed for her expenses. Not surprisingly, Spain is home to about 50% of all egg donation treatment in Europe. This practice has spawned a new phrase: “medical tourism.” http://familyacuity.info/seeking-ivf-abroad-medical-tourism-for-infertile-couples/

So, Tormented, at the end of this “long and winding road” to borrow the Beatles’ immortal phrase from their 1970 classic “Let It Be” album, where does this leave us? Where do you come out? Not surprisingly, as with many such journeys, we end up where we began, at the ever-changing intersection of law and science whose boundaries shift as human knowledge and ingenuity reshape them to fit new challenges in a new time.  It is hard to say if and when the U.S. State Department will modify or abandon its commitment to a genetic link between parents and children when it comes to the transmission or acquisition of American citizenship. If the Answer Man could promise this, believe me Tormented, he would. Sadly, this is beyond the horizon. Be strong and of good courage, my friend. The Answer Man stands with our greatest First Lady Eleanor Roosevelt: “The future belongs to those who believe in the beauty of their dreams.”

This post is reprinted with permission from Bender’s Immigration Bulletin, 18 Bender’s Immigr. Bull. 7 (Jan.1, 2013).



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