Recent Changes in International Same Sex Surrogacy and United States Immigration Implications

Under Department of State  ("DOS") policy, children born to same-sex couples are treated the same way as children born out of wedlock for purposes of determining United States citizenship.  Despite the fact that same sex marriage is a federally recognized institution, the DOS requires the biological father to show a “blood relationship” by clear and convincing evidence and meet a 5-year residency requirement. This policy is currently being challenged in court. In the case E.J. and A.J. Dvash-Banks, a unique outcome occurred where twin brothers were born via surrogacy in Canada and one child received a passport and the other was denied a U.S. passport due to the different genetics of the children and the citizens of the parents. One child was created by the sperm of a U.S. citizen and one child was created by the sperm of a parent who was not a U.S. citizen. Despite the fact that the same sex couple was married, they were treated as if their children were born "out of wedlock" which triggers different residency requirements to issue a U.S. Passport. This decision was challenged in a California court, however, the DOS appealed the ruling to the U.S. Court of Appeals for the Ninth Circuit to determine whether both children should be issued a U.S. passport. Had these twins be born in the United States in a state where surrogacy is legally permissible, they would have both been a U.S. citizen regardless of the parents' citizenship. The fact that they were born in Canada and then sought U.S. citizenship implicated this scenario for the intended parents.  All states within the U.S. treat surrogacy differently and typically, the state law of the birth of the child (i.e. where the surrogate is located),  is the state law that usually applies to the surrogacy process. A parent considering surrogacy in the United States needs to consider if the applicable state law is permissible to allow them to be deemed the legal parents. Same sex couples may need additional analysis to ensure that the state law will not pose a barrier to their parental rights. It is critical for international intended parents looking to pursuant surrogacy abroad (either in or outside the United States), to consider the immigration implications before embarking upon their surrogacy journey. I wrote about a similar topic of the immigration implications international intended parents need to consider when coming to the United States to pursue surrogacy. To read more about the Immigration and Nationality Act case referenced above amongst other similar cases, CLICK HERE. To add to the above information, in June 2020, a Judge in Maryland ruled that a gay couples child who was born via surrogacy in Canada was deemed a U.S. citizen. The court rules this was as the child was born into the marriage of the couple, who were both U.S. citizens and who both lived in the United States prior to the child being born in Canada to transfer their U.S. citizenship to the baby.