USCIS recently issued policy guidance, published in the USCIS Policy Manual and Adjudicator’s Field Manual, related to the use of Assisted Reproductive Technology (ART) and its effect on immigration petitions and derivative citizenship.
Generally speaking, a person born abroad to U.S. Citizen parents is eligible for derivative citizenship. Depending on the circumstances, citizenship may be derived through both parents or just one. With respect to the mother, the Immigration and Nationality Act (INA) requires that the child’s “natural mother” be a U.S. citizen for the child to potentially be eligible for derivative citizenship. The question of who is the “natural mother” has been complicated by ART and other advances in reproductive technology. The question of who has a petitionable relationship with a child is similarly complicated in the context of family immigrant visa petitions.
According to the recent policy guidance, a “natural mother” may be either the genetic mother or the gestational mother. This means that a non-genetic, gestational mother (i.e. a surrogate mother who carries a fertilized embryo from another woman’s egg to term) is considered to be the “natural mother” of the child and can transmit citizenship at birth or after if other citizenship requirements are met. Similarly, a non-genetic, gestational mother has a petitionable relationship to the child if she is the legal parent of the child at the child’s birth.