U.S. State Department seeks to prevent statelessness in egg donor situations

By Elizabeth Gibson*

The U.S. State Department has just rolled out a new policy that should help reduce a rare form of statelessness caused by a conflict of laws related to Assisted Reproductive Technology (ART).

Technologies designed to help infertile couples have children have greatly improved over the past few decades. The use of egg and sperm donors as well as gestational surrogates has become increasingly common, and last month nine Swedish women made headlines for receiving womb transplants.

However, the law has often struggled to keep pace with the evolving definition of what it means to be a mother or father, especially as couples travel across borders in search of cheaper or newer procedures. In some cases, couples have used Assisted Reproductive Technology overseas only to later be told that they cannot take their newborn home because conflicting laws say the child is not their own or does not qualify for citizenship in their home country.

For example, due to inconsistent laws on parentage, a gay Israeli man recently went on a hunger strike because he could not obtain an Israeli passport for his child. The child was one of 65 babies born to gay Israeli couples with surrogates in Thailand in a case where the children were initially denied passports by the Israeli government.

The new U.S. policy addresses a rare but distressing problem that can occur when an infertile American woman gives birth abroad using a donor egg, where an embryo created with a donor’s egg  is implanted into the American woman. This allows a woman who cannot get pregnant with her own eggs (due to age or a genetically linked disorder) to carry and give birth to a baby. However, U.S. law previously had been interpreted as requiring a genetic link between the mother and the child in order for her to pass U.S. citizenship onto the child. (This is only an issue if the child is not born on U.S. soil and citizenship cannot transfer through a qualified American father.)

Meanwhile, in some other countries, citizenship is determined based on who gave birth to the child. That means that there could be situations where the country of birth said the child was American and the United States said the child was not American. This could result in the child having no nationality at all, with a mother desperately struggling to take the child home.

This also could be an issue in situations where a lab mix-up overseas results in a couple expecting to give birth to a genetically-related child but instead giving birth to a child whose parentage is entirely unknown. Again, immigration problems come up if the parents still want to take the baby home to the United States because they gave birth to the child, nurtured the child, and do not want to abandon the child as a foundling. 

Now, the State Department has sought to address the issue by broadening the definition of who can pass on citizenship. According to a statement from the State Department: “Under the new policy, birth mothers (gestational mothers) who are also the legal parent of the child will be treated the same as genetic mothers for the purposes of immigration benefits.”  

For more information, take a look at the State Departments webpage on Assisted Reproductive Technology.


* Elizabeth Gibson is the Senior Editor of The Summit and worked as an intern for the U.S. State Department’s Bureau of Consular Affairs in the spring of 2013. All opinions in this post are her own.