When exploring the use of an overseas surrogate to give birth to a child, it is vital to plan for immigration-related issues that may arise. While many international surrogacy agencies provide guidance on how to have your baby, many lack the guidance about how to return to the United States once your child is born. This causes stress, frustration, and panic while in a foreign country. Depending on the immigration status of the parent(s), the child will either derive U.S. citizenship at birth or must submit an adjustment application to become a lawfully admitted permanent resident.

In general, a person born outside of the United States may acquire citizenship at birth if:

  • The person has at least one parent who is a U.S. citizen and,
  • The U.S. citizen parent meets certain residence or physical presence requirements in the United States or an outlying possession prior to the person’s birth in accordance with the pertinent provision.  

However, when using a foreign surrogate, the Department of State and USCIS’ interpretation of who derives citizenship is not so obvious. Below are different hypothetical parents and the different outcomes when having a child through a foreign surrogate.

Married U.S. Citizen and U.S. Citizen – Child biologically related to foreign surrogate and one U.S. Citizen

Here, the child should not have and issue obtaining a certificate of birth abroad. The child is related to at least one U.S. Citizen and assuming all other requirements are met, the child derived U.S. citizenship at birth.

Married U.S. Citizen and LPR – Child biologically related to foreign surrogate and U.S. Citizen

This child would derive U.S. citizenship at birth because the child is biologically related to the U.S. citizen as explained above.

Married U.S. Citizen and LPR – Child biologically related to foreign surrogate and LPR

If the child is biologically and genetically related to the foreign surrogate and the LPR, the couple will likely have issues obtaining a certificate of birth abroad. This is because the baby is not biologically or genetically related to the U.S. citizen.

Recently, the consulate has justified the biological requirement by relying on language from INA section 309(a). However, that section applies to children born out of wedlock, not married parents. The Department of State and USCIS are incorrectly applying INA 309(a) when the appropriate standard is set forth in INA 301(g). Nevertheless, this is what people are currently facing and should plan for when having a child abroad.

This scenario has been litigated recently and while there has been success and progress, depending on where the family lives, it may not be binding. A recent example includes the case Dvash-Banks v. Pompeo out of the Ninth Circuit. See Dvash-Banks v. U.S. Dep't of State, Case No. 2:18-cv-00523-JFW-(JCx). There, a married same-sex couple that included a U.S. Citizen and LPR used a surrogate in Canada to have twins. One twin was biologically related to the U.S. Citizen and the surrogate, the other twin was biologically related to the LPR and the surrogate. The Department of State only recognized the first twin as a U.S. citizen, because that twin had the biological relation to a U.S. citizen, whereas the other twin did not. The couple sued and won; however, the Department of State appealed the decision and the case remains pending. Given the evolving circumstances, consulting with an immigration attorney prior to starting the surrogacy process is strongly advised.

Married LPR and LPR, or Single LPR – Child biologically related to foreign surrogate and LPR

Here, the child would not derive citizenship at birth because the child is not related to a U.S. citizen. In this case, the LPR parent would need to petition for the child through form I-130. In this scenario, consulting with an immigration attorney prior to starting the surrogacy process is strongly advised.

Even if you know your child will derive U.S. citizenship at birth, surrogacy agencies do not always explain how a parent(s) obtains proof. To do this, the parent(s) should report the birth to a local consulate or embassy to obtain a Consular Report of Birth Abroad. To obtain this, the parent(s) must have the birth certificate of the child. In certain countries, the parent(s) will have to go through a court process to put the parent(s)’ name on the birth certificate in place of the surrogate. It’s necessary to have this completed before requesting a Consular Report of Birth Abroad to avoid an unnecessary denial. Once the child has the Consular Report of Birth Abroad, they can apply for a U.S. passport. The next step is for the child to submit Form N-600, Application for Certificate of Citizenship. This is where USCIS reviews and confirms that the child is a United States citizen and the child receives the certificate as proof.

Unmarried Parents

USCIS imposes more requirements on deriving citizenship abroad when the child is born out of wedlock, depending on whether the United States citizen parent is male or female.

Unmarried Father

If the United States citizen parent is male, the general requirements include:

  1. A blood relationship between the child and the father is established by clear and convincing evidence;
  2. The child’s father was a U.S. citizen at the time of the child’s birth; 
  3. The child’s father (unless deceased) has agreed in writing to provide financial support for the child until the child reaches 18 years of age; and
  4. One of the following criteria is met before the child reaches 18 years of age:
  5. The child is legitimated under the law of his or her residence or domicile;​
  6. The father acknowledges in writing and under oath the paternity of the child; or​
  7. The paternity of the child is established by adjudication of a competent court.

In addition, the residence or physical presence requirements contained in the relevant paragraph of INA 301 continue to apply to children born out of wedlock, who are claiming citizenship through their fathers.

Unmarried Mother

The requirements when a child is born out of wedlock change depending on if the child was born before or after June 12, 2017.

A child born on or after June 12, 2017, who is born out of wedlock outside of the United States or one of its outlying possessions acquires citizenship at birth if:

  • The child’s mother was a U.S. citizen at the time of the child’s birth; and​
  • The child’s U.S. citizen mother was physically present in the United States or one of its outlying possessions for at least 5 years prior to the child’s birth (at least 2 years of which were after age 14)

Assuming the above-referenced requirements are met, the following are hypothetical situations when the parent is unmarried.

Single U.S. Citizen – Child biologically related to surrogate and one U.S. Citizen

Assuming all requirements are met, in this situation the child should not have issue obtaining a certificate of birth abroad. The child is related to at least one U.S. Citizen and assuming all other requirements are met, the child derived U.S. citizenship at birth.

Unmarried U.S. Citizen and LPR – Child biologically related to U.S. Citizen

Assuming all requirements are met, in this situation the child should not have issue obtaining a certificate of birth abroad. The child is related to at least one U.S. Citizen and assuming all other requirements are met, the child derived U.S. citizenship at birth.

Unmarried U.S. Citizen and LPR – Child biologically related to surrogate and LPR

Here, the child does not derive citizenship at birth because they are not biologically related to a U.S. Citizen and the couple is unmarried.

Because of the constantly changing standards and interpretations relating to birth through a foreign surrogate, Wilson Law Group encourages parent(s) to schedule a free consultation.