Same-Sex Couples Using ART: Your Baby Is No Longer An Alien

The U.S. Citizenship and Immigration Services has finally published long-awaited guidance regarding children born using assisted reproductive technology (ART). For the purposes of immigration law, the “parent” of a child now includes both a genetic parent or gestational parent such that a gestational mother can petition for a child so long as she is the legal parent of the child. This tiny fix in the regulation has far-reaching immigrations.

Previous guidance on this matter was often contradictory. The Immigration and Nationality Act (INA) does not expressly require a genetic link for a parent-child relationship. However, up until recently, the U.S. Department of State (DOS) required genetic kinship for citizenship transmission to children. The citizenship of a child was determined based on the man who provided the sperm and the woman who provided the egg.

This led to ludicrous cases where a U.S. citizen carrying her foreign-born partner’s egg fertilized through an anonymous sperm donor had to adopt her own baby to transmit U.S. citizenship or where a child born through a surrogate could not assume U.S. citizenship. Faced with such unsatisfactory outcomes, the Ninth Circuit Court of Appeals, held in Solis-Espinoza v. Gonzales, 401 F.3d 1090 (9th Cir. 2005), that no genetic relationship is required for a foreign-born child to derive citizenship at birth from the U.S. citizen spouse of a biological parent.

Since that decision, conceiving children through ART has become even more prevalent. While married, different sex couples are most likely to use ART, this new guidance from USCIS predominantly affected same-sex couples who could not meet the prior genetic relationship requirement laid out in regulations. Oftentimes, same-sex couples with children born through ART were forced to live in exile abroad in order to stay together as one family unit because their children were not considered U.S. citizens.

We look forward to assisting LGBT families reunite with their loved ones in the U.S.