USCIS Updates Policy on Children Born Using Assisted Reproductive Technology26 Aug 2021
The U.S. Citizenship and Immigration Services (USCIS) has revised its policy related to the definition of a parental relationship. The USCIS will now recognize a parent-child relationship for children born abroad using assisted reproductive technology (ART), as long as the child’s parents were married at the time of the child’s birth, and the child has a genetic or gestational tie to either parent. This policy revision follows a similar reinterpretation made by the U.S. Department of State (DOS), as discussed in the MurthyDotCom NewsBrief, Eligibility for U.S. Citizenship for Child Born Abroad to U.S. Citizen Parent (07.Jun.2021).
Historically, children born abroad via the use of ART, such as surrogacy, have only been granted U.S. citizenship at birth if there was a genetic or gestational relationship to the U.S. citizen parent. With the development and increased use of ART, there has been growing pressure to update the rule and make it consistent with today’s reality. The prior rule would often result in confusion and concern that the family unit would get separated. There was no simple solution to the problem other than to reinterpret the law.
Status of Children Born Abroad Through ART
A child is considered born in wedlock if the legal parents are married to each other at the time of birth and at least one of them has a genetic or gestational relationship to the child. Therefore, a non-genetic, non-gestational legal parent may file a petition for alien relative (form I-130) on behalf of the child if the parent is married to the child’s genetic or gestational parent at the time of the child’s birth and both are legal parents in the related jurisdiction.
Additionally, the USCIS clarified the definition of “child” to include the child of a U.S. citizen parent who is married to the child’s genetic or legal gestational parent at the time of the child’s birth, even if no genetic or gestational relationship exists with the U.S. citizen parent, if both parents are legal parents in the related jurisdiction. The clarification expands the transmission of U.S. citizenship to a child born through ART outside the U.S. by a non-genetic, non-gestational legal parent who was married to the child’s genetic or gestational parent at the time of the child’s birth, as long as both parents are the child’s legal parents in the related jurisdiction. Legal parental relationship may be automatically established by birth in some jurisdictions, while others require additional steps in some jurisdictions.
The new interpretation by the USCIS ensures consistency among the different federal agencies. It allows families to transmit U.S. citizenship to their children born outside the country and helps to promote family unity. It is a significant step in adapting to modern medical technologies and satisfying the needs of modern families.
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