Sorry, Ma'am, Your Baby is an Alien: Outdated Immigration Rules and Assisted Reproductive Technology
Mercer University School of Law; Mercer University - Walter F. George School of Law
August 16, 2010
Florida Coastal Law Review (Symposium Edition), Vol. 12, p. 47, Fall 2010
The growing use of assisted reproductive technology (ART) and legal recognition of same-sex relationships is raising questions regarding the recognition of parent-child relationships. State and foreign family law have been wrestling with these issues for decades, but U.S. immigration law has lagged far behind.
So far, guidance exists on only one ART related issue under the Immigration and Nationality Act (INA): whether a U.S. citizen transmits her citizenship to a child born abroad. Unfortunately, that guidance is contradictory. The U.S. Department of State (DOS) requires genetic kinship for citizenship transmission. The Ninth Circuit Court of Appeals focuses on the parents’ marriage, requiring no genetic link between a child born in wedlock and his U.S. citizen parent.
Married, different-sex couples are the most likely to use ART to build a family; however, this issue may be more important to same-sex couples. Because birth certificates are the primary evidence used to demonstrate a parent-child relationship, same-sex couples are more likely to suffer from a genetic-relationship requirement.
This Article aims to resolve these and other issues regarding INA recognition of parent-child relationships stemming from ART. It briefly reviews the various ways in which state laws have dealt with ART related parentage issues. It then explores the legislative, administrative, and judicial history of the relevant INA provisions, paying particular attention to developments dealing with “legitimacy,” an issue that raised similar questions during the twentieth century. This Article argues for deference to state and foreign law in determining the parentage of children conceived through ART and in determining whether the child was born “out of wedlock.”
Number of Pages in PDF File: 88
Keywords: ART, assisted reproduction, assisted reproductive, reproductive technology, gay, lesbian, ART, child, parent, immigration, wedlock, citizenship, nationality, INA, I.N.A., BIA, B.I.A., partnership, same sex, same-sex, marriage, DOMA
JEL Classification: K19
Date posted: August 20, 2010 ; Last revised: March 1, 2012