The U.S. Department of State determines whether a child born abroad to a U.S. citizen parent acquired U.S. citizenship at birth
A child born abroad may acquire U.S. citizenship at birth if the parent/parents of the child meet the conditions prescribed in the Immigration and Nationality Act (INA).
The U.S. Department of State interprets the INA to mean that a child born abroad must be biologically related to a U.S. citizen parent who meets the following statutory transmission requirements of INA 301 or 309 in order for the child to acquire U.S. citizenship at birth:
DNA testing is often the best way to establish a genetic or blood relationship after the child is born.
Even if local law recognizes a surrogacy agreement and finds that U.S. parents are the legal parents of a child conceived and born abroad through ART, if the child does not have a biological connection to a U.S. citizen parent, the child will not be a U.S. citizen at birth.
In addition to establishing a biological relationship to the child, U.S. citizen parents must also establish that other transmission requirements have been met, such as having had certain periods of physical presence or a residence in the United States prior to the birth of the child. For more information about specific requirements, visit INA Sections 301 and 309.
The Department of State can only determine the U.S. citizenship status of a child born abroad after the child is born.
A U.S. citizen parent who has a biological child overseas, including via a foreign surrogate mother, may apply for a Consular Report of Birth Abroad of an American Citizen (CRBA) and a U.S. passport for the child at the U.S. Embassy or Consulate in the country where the child was born.
For documents required for your case, consult the website for your nearest U.S. embassy or consulate. Parents must provide evidence to the local U.S. Embassy or Consulate of the child’s identity, birth, and citizenship. In an ART case, the parents may be requested to provide medical and documentary evidence of the child’s conception and birth and such other evidence to demonstrate the biological connection between parent and child, along with evidence of the parents’ identity, citizenship, parent’s requisite physical presence in the United States, and legal status as the child’s parent under local law.
Parents may also arrange for DNA tests of the child, using approved labs and procedures as described in our Information Sheet for Parents on U.S. Citizenship and DNA Testing.
If a child born to a foreign surrogate is not biologically related to a U.S. citizen parent, the child will not acquire U.S. citizenship automatically at birth and therefore will not be entitled to a U.S. passport or a Consular Report of Birth Abroad.
If your child is eligible to apply for a U.S. passport, please NOTE: In many cases under U.S. law, the legal parents of a child under 16 years old must both consent to the U.S. passport application. If, under local law, a surrogate mother is the legal mother of a child born through ART, then the surrogate mother would need to consent to passport issuance.
A CRBA is a citizenship document, not a parentage document. A CRBA certifies that a child born abroad is a U.S. citizen. A CRBA does not determine the identity of the child’s legal parents. Therefore, in general, the name/s listed on the CRBA is/are the U.S. citizen parent/s with a biological connection to the child. A second parent may be listed on the CRBA if the second parent demonstrates a legal parental relationship to the child under local law; the CRBA does not, however, serve as a record of that individual’s status.
If your child did not acquire U.S. citizenship at birth and therefore cannot be issued a U.S. passport or otherwise documented as a U.S. citizen, you ;may encounter difficulty when attempting to return to the United States with your child.
Fertility Clinic Errors Can Have Serious Consequences for Children Born Abroad Through ART The Department is aware of cases where foreign fertility clinics have substituted alternate donor sperm and eggs for the U.S. parents’ genetic material, either purposefully when the planned genetic material turned out not to be viable or through accidental laboratory errors. The intended parents learned of these undisclosed switches only when the parents obtained DNA tests after the child’s birth, sometimes as part of the process of documenting the child’s citizenship for the purposes of obtaining a U.S. passport. Sometimes, as a result of these errors, the child was born stateless and was unable to obtain travel documents to leave the country of birth.
U.S. Embassies and Consulates cannot recommend particular foreign fertility clinics. Parents should research their options carefully.
Because of the complexity that may be involved in having a child abroad using ART, it may be helpful for U.S. parents considering a foreign surrogacy arrangement to consult with an immigration attorney first.