On Aug. 5, 2021, U.S. Citizenship and Immigration Services (USCIS) updated its policy guidance in the USCIS Policy Manual regarding whether a child born outside the United States, including one born through the use of Assisted Reproductive Technology (ART), is considered to be born “in wedlock” under the Immigration and Nationality ACT (INA).¹ This change matches an earlier update issued by the Department of State in May 2021.²

Under the statute, a child born outside the United States to one or both U.S. citizen parents may acquire U.S. citizenship at birth if certain criteria are met. Both the State Department and USCIS play a role in issuing proof of a child’s U.S. citizenship. The State Department can issue to such a child born overseas either or both a U.S. passport or a Consular Report of Birth Abroad. USCIS can issue an N-600, Certificate of Citizenship, as proof that the child is a U.S. citizen. The ability of the U.S. citizen parent or parents to transmit citizenship to their child born overseas depends on various factors, including the parent or parents’ length of residency in the United States, the length and timing of that residency, and whether the child was born in wedlock or out of wedlock.

The newly updated USCIS guidance now explains that a child is considered born in wedlock “when the child’s legal parents are married to one another at the time of birth and at least one of the legal parents has a genetic or gestational relationship with the child.”³ Further the term “child” is now defined 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 if both parents are recognized by the relevant jurisdiction as the child’s legal parents.”⁴

In recent years, the State Department and USCIS have begun to update their guidance with respect to children born outside the United States through the use of ART. For example, in 2014, the State Department and USCIS clarified that a non-genetic gestational mother who gave birth to a child and is also the child’s legal mother is considered a “natural mother” of the child and may transmit citizenship at birth or after birth of the child, assuming the other statutory requirements are met.

Despite this 2014 change, the State Department and USCIS continued applying an antiquated framework for analyzing other aspects of transmission of U.S. citizenship, causing hardship to many families. For example, the State Department would not grant proof of citizenship to a child born overseas who lacked a genetic or gestational relationship to the U.S. citizen parent, even if that U.S. citizen parent was legally married to the child’s genetic parent. Instead, the State Department and USCIS required the child to either be biologically related to the U.S. citizen parent (or to have been birthed by the legal gestational U.S. citizen parent) in order for the child to acquire citizenship at birth. In addition, the State Department and USCIS required that the child’s genetic parents (or the legal gestational parent and one genetic parent) be married to each other in order for the child to be considered to be born “in wedlock.”

This policy disproportionately impacted children born overseas to same-sex couples. Many same-sex couples reported probing questions and demands for DNA testing when seeking proof of the child’s citizenship at U.S. consulates and embassies. Several couples were forced to resort to federal litigation after being initially denied proof of their children’s citizenship. Federal courts regularly sided with these couples in finding that the immigration agencies were applying a flawed interpretation of the statute, but such lawsuits were time-consuming and difficult to pursue.

The issue began to receive press attention as impacted families shared their stories. In one example, a same-sex married couple had twin boys in Canada, born just minutes apart to a surrogate. The couple, comprised of one U.S. citizen parent and one foreign national, were in the absurd situation of having one twin, biologically related to the U.S. citizen parent, easily granted a U.S. passport while the other twin, biologically related to the foreign national parent, was denied proof of U.S. citizenship.⁵ After filing a lawsuit, a federal court found the State Department interpretation erroneous and determined that the child had in fact acquired U.S. citizenship at birth. In another example, a child born overseas to a same-sex married couple, both of whom were U.S. citizens, was denied proof of citizenship. There, the State Department determined that the child had not acquired citizenship because the agency found that the child was born out of wedlock, and her biological mother could not meet the more stringent residency requirement for transmission of U.S. citizenship in those circumstances. Again, a federal court later overturned that finding, determining that the child had in fact acquired citizenship upon birth by being born in wedlock to two U.S. citizen parents.⁶

On May 18, 2021, the State Department announced a welcome change in its interpretation of the statute. It stated that children born abroad to parents, at least one of whom is a U.S. citizen and who are married to each other at the time of the birth, will be U.S. citizens from birth if they have a genetic or gestational tie to at least one of their parents.⁷ That is, the State Department will no longer require a genetic or gestational tie specifically to the U.S. citizen parent. On Aug. 5, 2021, USCIS followed suit, matching the State Department guidance and updating the Policy Manual to conform to the same legal interpretation. The USCIS policy manual also indicates that individuals wrongly denied a certificate of citizenship based on the prior interpretation may file a motion to reopen or reconsider.

¹ See Policy Alert, Assisted Reproductive Technology and In-Wedlock Determinations for Immigration and Citizenship Purposes, PA-2021-17 (August 5, 2021).
² Press Release, U.S. Department of State, U.S. Citizenship Transmission and Assisted Reproductive Technology (May 18, 2021).
³ See Policy Alert, Assisted Reproductive Technology and In-Wedlock Determinations for Immigration and Citizenship Purposes, PA-2021-17 (August 5, 2021).
⁴ Id.
⁵ Sarah Zhang, The IVF Cases That Broke Birthright Citizenship, The Atlantic, June 10, 2021, theatlantic.com/science/archive/2021/06/ivf-us-birthright-citizenship/619155/
⁶ Michael Kunzelman, Judge: Gay Couple’s Child Was U.S. Citizen at Birth in Canada, the Associated Press, June 17, 2020, apnews.com/article/united-states-lifestyle-canada-us-news-immigration-a2b7137b9fe6fd91a307829cbdada825.
⁷ The U.S. citizen parent or parents will still need to document the necessary residency requirements for transmission. In the case of a child born in-wedlock to one U.S. citizen parent and one foreign national parent, this requires documenting five years of physical presence prior to the child’s birth, two of which were after the age of 14. A child born abroad in-wedlock to two U.S. citizen parents acquires citizenship if one parent resided in the U.S. at any time prior to the child’s birth.