Baby Without a Country: Determining Citizenship for Assisted Reproduction Children Born Overseas
34 Pages Posted: 27 Nov 2012 Last revised: 19 Jun 2014
Date Written: June 18, 2014
The United States has long followed the English common law view that citizenship can be attained at birth in two ways: by being born in the U.S. (jus soli), or by being born abroad as the child of a U.S. citizen (jus sanguinis). The first, jus soli, is now part of the 14th amendment to the U.S. Constitution: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the state wherein they reside.” Jus soli does not inquire into the citizenship of the child’s parents; the relevant fact is that the birth takes place in the United States. Jus sanguinis, in contrast, arises “from the bloodline,” a principle dating back to Roman law. For a child born abroad to claim citizenship through jus sanguinis, the State Department requires proof of a blood relationship between the child and a U.S. citizen: “It is not enough that the child is presumed to be the issue of the parents’ marriage by the laws of the jurisdiction where the child was born.”
A purely genetic connection to the child is sufficient to establish parentage in relatively few instances in American law. One is child support: even if the genetic father has had no contact with the child, and has done nothing to establish a relationship (or even been prevented from knowing about the child), the genetic connection may be enough if no other presumed father is on the scene. This article explores a second instance in which the genetic connection is paramount: when an American citizen gives birth abroad. A genetic test works well for children conceived coitally, but may wreak havoc for those conceived using assisted reproduction techniques (ART). Citizenship has recently been denied to the children of two American women who used anonymously donated gametes to conceive and give birth to a child in Israel and in Switzerland; in a third case, the U.S. Embassy refused to recognize the birth mother as the child’s mother because she had used donated eggs and given birth to the child in India.
This Article traces the origins of jus sanguinis back to Roman law, when the scientific understanding of conception differed radically from our knowledge today. Tracing the law and science through early English and American law up until today, this Article critiques three prevailing views of determining maternity, and proposes a workable solution for assisted reproduction children who currently are denied American citizenship.
Keywords: jus soli, citizenship, Fourteenth Amendment, jus sanguinis, parentage
Suggested Citation: Suggested Citation