Egg or Sperm Donor Need Not be From US Citizen to Obtain US Citizenship
For most married couples, raising kids of their own is a given. Unfortunately, some couples have fertility problems. Thus, options like adoption or undergoing assisted reproductive technology (ART) are considered. ART includes in vitro fertilization (transfer of fertilized human eggs into a woman’s uterus). In vitro fertilization involves surgically removing eggs from a woman’s ovaries and combining them with a sperm in the laboratory, after which they are either returned to the woman’s body or implanted into another woman.
In the Philippines, surrogacy arrangements of any form are still considered invalid as being morally and religiously wrong. The same rule does not apply to other countries where surrogacy arrangements are recognized and regulated. While this surrogacy arrangement is considered void in the Philippines, there are some Filipino nationals who have the option of undergoing assisted reproduction technology in varying ways.
In an actual case, Maria who is of Filipino heritage and who is now a US citizen residing in California entered into a surrogacy arrangement with a woman in India. Maria’s egg cell was used together with the sperm of her US citizen husband. The fertilized egg was then implanted in the surrogate mother in India who carried the baby to term. After the child was born, a U.S. passport was applied for at the U.S. Consulate in India and the child was issued a U.S passport. The U.S. State Department clearly followed the rule that “the sperm or the egg donor must be a U.S. citizen in order to transmit U.S. citizenship to a child conceived through assisted reproductive technology.” The child’s application for U.S. passport was granted after a genetic link was proven to exist. Sections 301 and 309 of the Immigration and Nationality Act regarding transmission of citizenship provides this rule. Hence, as in the case of Maria, even if the surrogate mother (woman from India who carried the child for nine months) is not a U.S. citizen, the child may still be considered as a U. S. citizen.
In a reverse situation where the fertilized egg is from a confidential donor and is implanted into the womb of a mother through ART, a problem will arise if the mother gives birth outside the US. Generally, a U.S. citizen mother who carries the fetus for 9 months expects the child who is born to be a U.S. citizen as well. However, what about the situation where the egg or sperm donor (or both) is unknown (or kept confidential)? Under the old rule, problems of citizenship may arise in these cases where the sperm or egg donor wishes to remain confidential or anonymous. In these cases, there will be no way to prove citizenship of the donor for purposes of transmitting citizenship to the child.
In a recent development released this month of February, the U.S. Department of State announced a major policy change to facilitate transmission of American citizenship to children born outside the United States using Assisted Reproductive Technology. There is no more requirement of a genetic link. According to the State Department, U.S. citizen mother can now pass on citizenship to children to whom they give birth regardless of whose egg or sperm was used for conception.
(Atty. Lourdes Santos Tancinco may be reached at 1 888 930 0808 or at law@tancinco.com or visit her website at tancinco.weareph.com/old)
