The U.S. Citizenship & Immigration Services (“USCIS”) and the Department of State (“DOS”) have exercised their shared authority and collaborated in the development of a policy expanding the definitions of “mother” and “parent” under the Immigration & Nationality Act (“INA”) to include gestational mothers using Assisted Reproductive Technology (“ART”), regardless of whether they are also the genetic mother.
Under this policy, announced on October 28, 2014, a non-genetic gestational mother (i.e., a person who carried and gave birth to the child but has no genetic relationship to that child) who is also the child’s legal mother may be recognized under the INA in the same way as genetic legal mothers. Previously, a genetic relationship with a U.S. citizen parent was required in order for a child born abroad to acquire citizenship at birth through his or her parent, resulting in absurd results in which a mother has to adopt the baby she birthed in order for the baby to obtain U.S. Citizenship.
The INA definition of the term “mother” and “parent” now includes any mother who (i) gave birth to the child and (ii) was the child’s legal mother at the time of birth under the law of the relevant jurisdiction.
Thus, a mother who meets the definition, but lacks a genetic relationship with her child will be able to petition for her child’s permanent residency or have the child petition for her permanent residency, based on the relationship. If the mother is a U.S. citizen, she can then transmit citizenship to her child, provided all pertinent citizenship requirements are met. This new definition will provide relief to same-sex couples who use ART to conceive, among others.
Policy Highlights
- A “natural mother” or “natural father” is a genetic parent or gestational parent. Accordingly, the “natural mother” of a child born out of wedlock includes a non-genetic gestational mother if she is the legal parent at the time of birth.
- A gestational mother has a petitionable relationship without a genetic relationship to the child, as long as she is also the child’s legal parent at the time of birth.
- A non-genetic gestational legal mother who is a U.S. citizen may transmit citizenship at birth, or after birth, when all other pertinent citizenship and naturalization requirements are met.
For more information, please contact Mechelle Zarou at 419.321.1460 or mzarou@slk-law.com.