Surrogacy and Birthright Citizenship: What You Need to Know

What is “birthright citizenship,” and how does it affect families formed through surrogacy? There are two ways in which someone might have birthright citizenship in the United States.

The first stems from the Fourteenth Amendment to the United States Constitution, which states: “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” This is how most people who claim birthright citizenship get it: they are simply born in the United States.

The second way to have birthright citizenship, found in federal legislation rather than the Constitution, is to be born to a parent who is a citizen of the United States (this is how Senator Ted Cruz, born in Canada to a U.S. citizen mother and Cuban father, was allowed to run for President). But it is the form of birthright citizenship described in the 14th Amendment that is likely to affect couples who build their families through surrogacy.

Birthright Citizenship When Intended Parents are U.S. Citizens and Surrogate is Not

Surrogacy adds a layer of complexity to questions of citizenship. Does it make a difference whether the intended parents, or the surrogate, is a United States citizen?

If a surrogate is not a U.S. citizen, but the child is born in the United States, the child is a citizen of this country. This is true whether or not the intended parents are U.S. citizens. But what happens when a non-U.S. citizen surrogate gives birth outside the United States? Is the U.S. citizenship of the intended parents enough to grant the child U.S. citizenship?

This is exactly the question raised by a federal lawsuit in which married couple Roee and Adiel filed a lawsuit in the U.S. District Court for the District of Maryland against the U.S. State Department. At issue was the citizenship of the couple’s daughter, born in Canada to a surrogate using genetic material contributed by an egg donor and one of her fathers, Adiel Kiviti.

The couple’s older child, Lev, had been born under similar circumstances in 2016, but using genetic material from his father Roee Kiviti. Roee Kiviti had been born in Israel and became a U.S. citizen in 2001. Roee and Adiel Kiviti were able to obtain U.S. citizenship and a passport for Lev in January 2017. The application was processed under the policy for children born abroad to U.S. citizen parents.

However, when the Kivitis’ daughter Kessem was born in Canada in February 2019, she was treated as “a child born abroad to a surrogate, whose genetic parents are a U.S. citizen father and anonymous egg donor,” and “considered for citizenship purposes to be a person born out of wedlock” under U.S. State Department policy.

Adiel Kiviti, like his husband, is a naturalized U.S. citizen. However, he had been a resident of the United States for just under five years. State Department policy dictated that the biological parent of a child born out of wedlock must have been a resident of the United States for five years in order for the child to be considered a U.S. citizen. As a result, the U.S. State department denied Kessem Kiviti’s application for U.S. citizenship. The Kivitis filed their lawsuit challenging the determination in September 2019. Three other couples filed similar lawsuits.

In June 2020, a federal judge ordered the U.S. State Department to recognize Kessem Kiviti’s U.S. citizenship and grant her a passport.

Birthright Citizenship When Intended Parents Are Not U.S. Citizens

Another situation in which the issue of birthright citizenship has arisen is when intended parents come to the U.S. to work with a surrogate. In some countries, such as China, surrogacy is illegal; in others it is simply frowned upon. Regardless of the surrogacy policy in their native country, children of foreign intended parents born via surrogacy in the United States are American citizens by birth.

President Trump has threatened to end birthright citizenship for individuals born in the United States, but given that that right springs from the Constitution, which is very difficult to amend, it’s highly unlikely that his threats will be realized.

Despite the difficulty the administration would face in overturning birthright citizenship, the threat that it might do so may discourage intended parents from another country from working with a surrogate in the United States. Intended parents who are concerned about the citizenship status of a future child should consult with an experienced Assisted Reproduction Technology (ART) attorney.

An experienced ART attorney can review the facts of your case and explain how the law applies to your situation. With the proper advance planning, building your family through surrogacy will not involve challenges to your future child’s citizenship. We invite you to contact Attorney Stephanie Brinkley to schedule a consultation.