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IMMIGRATION JUNE 11, 2021 | The Indian Eye 48

state Department’s new Guidance Broadening

Transmission of citizenship to children Born abroad is

Welcome and consistent with federal court Decisions

cYrus D. MehTa other at the time of the the citizenship transmis- to birth, and the egg is not was intended to keep fam-
birth, will be U.S. citizens sion requirements estab- hers and the sperm is from ilies together. It should
n May 18, 2021, from birth if they have a lished in the INA. Re- a non-US citizen father, be construed in favor of
the State De- genetic or gestational tie quirements for children US citizenship could not family units and the ac-
Opartment issued to at least one of their par- born to unmarried par- be passed onto the child. ceptance of responsibility
guidance broadening the ents and meet the INA’s ents remain unchanged. Thus, under the prior pol- by family members. See,
path for transmission of other requirements. Pre- At the same time, we icy, such a mother who for e.g., Kaliski v. Dist. Dir.
US citizenship to a child viously, the Department’s remain vigilant to the risks medical reasons was un- of INS, 620 F.2d 214, 217
born abroad to married interpretation and ap- of citizenship fraud, ex- able to establish a biolog- (9th Cir.1980) (discussing
parents. The guidance is plication of the INA re- ploitation, and abuse. As ical link to her child, and the “humane purpose” of
reproduced below: quired that children born with all citizenship and also could not serve as the the INA and noting that
Recognizing the ad- abroad have a genetic or immigration benefits we gestational mother her- a “strict interpretation”
vances in assisted repro- gestational relationship to examine, the Department self, was unable to trans- of the Act, including an
ductive technology the a U.S. citizen parent. will implement this policy mit US citizenship to her “arbitrary distinction” be-
State Department is up- This updated inter- in a manner that addresses child. This was unfair for tween legitimate and ille-
dating our interpretation pretation and application these concerns. such mothers. gitimate children, would
and application of Sec- of the INA takes into ac- This new interpreta- The nationality provi- “detract from … the pur-
tion 301 of the Immigra- count the realities of mod- tion allows a U.S. citizen sions of the INA were writ- pose of the Act which
tion and Nationality Act ern families and advances who has a child through ten long before the advent is to prevent continued
(INA), which establishes in ART from when the Act surrogacy, an egg donor, of ART. The State De- separation of families.”);
the requirements for ac- was enacted in 1952. in vitro fertilization as well partment is to be heartily H.R.Rep. No. 85-1199,
quisition of U.S. citizen- This change will allow as other advances in assist- congratulated for bringing pt. 2 (1957), reprinted in
ship at birth. increased numbers of mar- ed reproductive technolo- them into the 21st century. 1957 U.S.C.C.A.N.2016,
Children born abroad ried couples to transmit gy (ART) to transmit U.S. The willingness and ability 2020 (observing that the
to parents, at least one of U.S. citizenship to their citizenship to their child, to understand parentage “legislative history of the
whom is a U.S. citizen and children born overseas, even if there is no genetic in a broader sense is some- Immigration and Nation-
who are married to each while continuing to follow or gestational relationship thing for which advocates ality Act clearly indicates
to the U.S. citizen parent have long contended. It that Congress intended to
so long as such a link ex- is precisely what a consis- provide for a liberal treat-
ists with the other married tent line of Ninth Circuit ment of children and was
parent. As stated in the case law and more recent- concerned with the prob-
State Department’s an- ly a Second Circuit case, lem of keeping families of
nouncement, this change which did not deal with United States citizens and
in policy “takes into ac- ART, has long exempli- immigrants united).
count the realities of mod- fied. See Scales v. INS, 232 Solis-Espinoza, supra,
ern families.” This is wel- F.3d 1159 (2000); Solis-Es- at 1094.
come news for a growing pinoza v. Gonzales, 401 F. The Second Circuit in

number of families who 3d 1090 (9th Cir. 2005); Jaen v. Sessions did not
rely on the advancements Jaen v. Sessions, 899 F.3d insist on a genetic or ges-
of reproductive technolo- 182 (2d Cir. 2018). In tational tie with the US cit-
gies to build their families. these cases, so long as a izen parent, and the State
For instance, prior child was not born out of Department’s new policy
State Department policy wedlock, or if born out of is consistent with Jaen v.
deprived the US citizen wedlock was subsequently Sessions. David Isaacson’s
m of mother who may neither legitimated, the child did blog, Jaen v. Sessions: The
CYRUS D. MEHTA & PARTNERS PLLC have been the gestational not need to prove that he Government Reminds Us
mother nor have a genetic or she was the biological That Government Man-

relationship with the child child of the US citizen par- uals Aren’t Always Right,
from passing US citizen- ent to acquire citizenship. correctly pointed out that

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­ ship. A US citizen moth- Public policy supports the prior US government
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er is medically unable to recognition and main- policy or guidance may
bear a child and needs to tenance of a family unit. not actually be the law,
use a surrogate mother The Immigration and and federal courts need

2 6th Floor overseas to carry the child Nationality Act (“INA”) to step in to point this out.

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