USCIS recently issued a new policy (PA-2014-009) clarifying the definition of “mother” and “parent” under the Immigration and Nationality Act (INA) to include gestational mothers using assisted reproductive technology regardless of whether they are the genetic mothers. USCIS and the Department of State (DOS), who exercise authority over these issues, collaborated in the development of this policy. USCIS and DOS concluded that the term “mother” and “parent” under the INA includes any mother who:
• Gave birth to the child; and
• Was the child’s legal mother at the time of birth under the law of the relevant jurisdiction.
Under this new policy, a mother who meets this definition but does not have a genetic relationship with her child (for example, she became pregnant through an egg donor) will:
• Be able to petition for her child based on their relationship
• Be eligible to have her child petition for her based on their relationship
• Be able to transmit U.S. citizenship to her child, if she is a U.S. citizen and all other pertinent citizenship requirements are met.
The new policy also treats a child as having been born “in wedlock” when the genetic and/or gestational parents are legally married to each other at the time of the child’s birth and both parents are the legal parents of the child at the time and place of birth.
Previously, in order for a child to acquire citizenship under INA §301, both parents must have been genetically related to the child and have been married to one another at the time of birth. This new policy will allow a U.S. citizen genetic father to transmit citizenship to a child carried by-but not genetically related to-his noncitizen spouse without having to comply with the more stringent requirements of INA §309. It will also allow the child of a lesbian married couple to acquire citizenship under INA §301, so long as one parent was the gestational mother and the other the genetic mother, regardless of which parent is the U.S. citizen.
As noted by American Immigration Lawyers Association (AILA) this change still does not confer immigration benefits in all situations where a child is born using ART. For example, in a situation where a surrogate is used to carry the child to term, the child will not be recognized as a U.S. citizen by birth in the absence of a genetic connection to a U.S. citizen, even if a non-genetically related U.S. citizen is recognized as the legal parent of the child in the country of birth.
Also, this new policy will not confer benefits when a surrogate mother gives birth to a child but she is not recognized as child’s legal mother at the time of birth under the law of the relevant jurisdiction. For instance, in India the surrogate is not considered as the legal mother. As per Indian Council of Medical Research (ICMR) Guidelines surrogate mother’s rights and obligations towards the intended parents as well the child are formulated in the gestational surrogacy agreement. Therefore, a child born through surrogacy shall be presumed to be the legitimate child of the intended parents/s and shall have all the legal rights to parental support, inheritance and all other privileges which a child born naturally to the intended parents/s would have had.
AILA is continuing to work with the Department of State toward a more expansive interpretation of the INA that addresses all scenarios in which U.S. citizens may have a child abroad using ART.
If you or your friends or any members of your family have any questions about U.S. immigration law or how the impact of this new policy may impact your case(s), please feel free to contact the U.S. immigration and nationality lawyers at the Nachman Phulwani Zimovcak (NPZ) Law Group, P.C. at firstname.lastname@example.org or by calling 201-670-0006 (x107).