In a positive development for American same-sex parents and American parents who welcome babies via IVF in other countries, the State Department will now approve U.S. citizenship for children born abroad to same-sex or heterosexual American parents via in vitro fertilization, surrogacy and by other assisted reproductive means.
Announced on Tuesday, the updated application of the Immigration and Nationality Act now says that a child will be a U.S. citizen if they are born abroad to married parents and at least one of the parents is a U.S. citizen. The child also must have biological ties to at least one parent. The State Department said this new application takes into account “the realities of modern families” and advances in assisted reproductive technology.
Previously, the State Department considered children born outside the U.S. to a surrogate to be born “out of wedlock” even when the parents were married. The State Department also used to require that children born abroad have a genetic or gestational relationship to a U.S. citizen parent.
“[The new policy] is a remarkable moment for all the LGBTQ families who fought the U.S. State Department’s unconstitutional policy,” Aaron Morris, executive director of Immigration Equality, an LGBTQ immigration rights organization behind several federal lawsuits challenging the State Department’s previous standard, told NPR.
“It demonstrates that when our community is united and relentlessly pushes back against discrimination, we win. We have once again affirmed that it is not biology but love that makes a family,” Morris said.
Under the old standard, several same-sex parents had filed lawsuits to have their children declared U.S. citizens. In June 2020, for example, a federal judge ruled that the State Department must recognize the daughter of a same-sex couple as a U.S. citizen since her birth in Canada via a surrogate the year before.
In another court case in 2019, a judge ruled in favor of the family of twin boys who were given different citizenship after being born in Canada to same-sex parents. One child, with genetic ties to his U.S. citizen father, had been granted citizenship, while his brother, with ties to his Israeli-born father, was denied citizenship. The judge ruled that both children were U.S. citizens because their parents were married at the time of his birth.
Read about how these celebrities who welcomed babies via surrogates.