Back in law school (1998-2001), I took an upper level seminar my third year on bioethics and the law. It covered a range of fascinating topics on medical research, stem cells, and similar topics. The main topic that stuck with me was reproductive technological advances and the legal conundrums they create. When a donor egg is fertilized with a donor egg and implanted in a surrogate for a couple to raise, who does the law recognize as the parents? How about when the donor egg is from the surrogate herself? Remember Baby M?
Naturally, as in any new area of law, the first few court decisions didn't always agree with each other but by the time I took that course, there seemed to be an emerging consensus that the law would look to who put the creation of this child into motion and who intended to be this child's parents. So basically donors and surrogates were losing out to the person or persons who accepted the donation or hired the surrogate. I think that's the right answer, that the donors don't have parental rights. Sperm banks would cease to exist if the anonymous donors could be on the hook for child support, after all.
So this story caught my eye the other day. A female American citizen decided to become a single mom. So she went through in vitro fertilization using a sperm donor. She also used an egg donor. All of this occurred in Israel, where the woman is living. The twins who resulted from this pregnancy were then born in Israel. When the new mother went to the US Embassy in Israel to register her children as US citizens, she was shocked to be asked how she conceived and where the sperm and egg came from.
What an appalling set of questions to be asked, right? Just as a starting point, once a woman produces a birth certificate and a doctor's note that she did, in fact, push these infants our her vagina, that really ought to be the end of the questioning. Asking how she got pregnant seems wildly, inappropriately invasive. But apparently this is US policy. If she had conceived the children naturally or used only a sperm donor, the children would be recognized as US citizens. And if she had adopted the children, they would be citizens. Heck, if she had gotten sperm and egg donations from American students studying in Israel, the kids would be citizens. But because she can't prove that either donor is a US citizen, the children aren't considered citizens. Even though they came from the womb of an American.
I am shocked to learn this is US policy. It makes no sense. Certainly, if a child born in a foreign country to foreign parents becomes a US citizen when they adopt that child, why shouldn't a child BORN to a US citizen become a US citizen upon birth, regardless of where the egg and sperm came from? It would certainly be in line with the law I studied in law school that granted rights based upon who caused this child to be created and born with the intention of parenting the child. Are we seriously going to say that this woman, a US citizen, can come and go into this country as she pleases but her toddlers can't? Do they at least get permanent resident status? She can get them citizenship by bringing them to the US and living here continuously for six months and filling out some paperwork. But I'm with her in thinking that's a ridiculous hoop that a US citizen shouldn't have to jump through for the children SHE GAVE BIRTH TO!
On a side note, this could leave some infants without citizenship because they won't all automatically be considered citizens of the country where they were born.
For the story, the State Department says they are sympathetic to this woman's situation, but are just following the law, a law that was designed to prevent people from fraudulently attaining American citizenship. Two things about this leave me needing to know more. First, what law is this? Did Congress actually pass a law or are they referring to a regulation?
Second, was this really happening? Were US women acting as surrogates, giving birth to babies so they could be citizens and then handing them back to the parents who actually intended to raise them? And if this really is happening, what on earth would stop these con artists from just lying and saying, "Yep, this baby came from my egg!"?? If you're willing to go to these absurd lengths to get your child US citizenship, it seems pretty plausible to me that you'd just lie to the Embassy employee who asked how you got pregnant. I'm guessing the woman in this story kinda wishes she'd lied on that question, too. Just think, if she'd just said she had some drunken one-night stand, her kids would be recognized as citizens by now.
Whether this is an actual act of Congress, result of a court decision, or a regulation enacted by the State Department, it is an uncommonly silly and illogical law that is not in keeping with sound legal reasoning, encourages lying, and needs to change.