8 FAM 304.3
Acquisition of U.S. Citizenship at Birth - Assisted Reproductive Technology
(CT:CITZ-73; 06-09-2022)
(Office of Origin: CA/PPT/S/A)
8 FAM 304.3-1 INTRODUCTION
(CT:CITZ-73; 06-09-2022)
a. This subchapter contains guidance on adjudicating at-birth citizenship claims for children born abroad when the applicant was conceived and/or born using assisted reproductive technology (ART) and/or surrogacy. Adjudicating ART and surrogacy cases can be complex. For guidance on cases that are not covered by a category below, and for questions, contact AskPPTAdjudication@state.gov.
b. Children born in the United States acquire U.S. citizenship at birth in accordance with 8 FAM 301.1 regardless of the use of ART and/or surrogacy.
c. See 8 FAM 101.3, and below, for definitions of the terms used in this subchapter:
(1) ART: see 8 FAM 101.3-1;
(2) Genetic tie: see 8 FAM 101.3-7;
(3) Gestational mother: see 8 FAM 101.3-7;
(4) Gestational tie: see 8 FAM 101.3-7;
(5) Intended parent(s): see 8 FAM 101.3-9;
(6) Parent, father, and mother: see 8 FAM 101.3-16;
(7) Surrogacy: see 8 FAM 101.3-19; and
(8) Surrogate: see 8 FAM 101.3-19.
8 FAM 304.3-2 BIRTH ABROAD TO A GENETIC AND GESTATIONAL MOTHER
8 FAM 304.3-2(A) Child Born Abroad to a U.S. Citizen Mother (Birth Mother, Genetic Mother))
(CT:CITZ-73; 06-09-2022)
a. The following chart summarizes the adjudicative guidance in this section:
|
Type of ART |
In wedlock or out of wedlock? |
Law |
FAM Reference |
|
ART used, but no outside genetic material |
In wedlock to two U.S. citizens |
INA 301(c) |
8 FAM 304.3-2(A) paragraph b |
|
Anonymous sperm donor |
In wedlock to two U.S. citizens |
INA 301(c) |
8 FAM 304.3-2(A) paragraph c |
|
ART used, but no outside genetic material |
In wedlock to a U.S. citizen and a non-U.S. citizen |
INA 301(g) |
8 FAM 304.3-2(A) paragraph d |
|
Anonymous sperm donor |
In wedlock to a U.S. citizen and a non-U.S. citizen |
INA 301(g) |
8 FAM 304.3-2(A) paragraph e |
|
Anonymous sperm donor |
Out of wedlock to a U.S. citizen mother |
INA 309(c) |
8 FAM 304.3-2(A) paragraph f |
b. A child born abroad to a married U.S. citizen genetic mother (who is married to a U.S. citizen) whose genetic parents are the U.S. citizen mother and her U.S. citizen spouse, is considered for citizenship purposes to be a person born in wedlock of two U.S. citizen parents, with a citizenship claim to be adjudicated under INA 301(c) (see 8 FAM 301.7-7).
c. A child born abroad to a married U.S. citizen genetic mother (who is married to a U.S. citizen) whose genetic parents are the U.S. citizen mother and an anonymous sperm donor, is considered for citizenship purposes to be a person born in wedlock of two U.S. citizen parents, with a citizenship claim to be adjudicated under INA 301(c) (see 8 FAM 301.7-7).
d. A child born abroad to a married U.S. citizen genetic mother (who is married to a non-U.S. citizen) whose genetic parents are the U.S. citizen mother and her non-U.S. citizen spouse, is considered for citizenship purposes to be a person born in wedlock to a U.S. citizen mother and non-U.S. citizen spouse, with a citizenship claim to be adjudicated under INA 301(g) (see 8 FAM 301.7-9).
e. A child born abroad to a married U.S. citizen genetic mother (who is married to a non-U.S. citizen) whose genetic parents are the U.S. citizen mother and an anonymous sperm donor, is considered for citizenship purposes to be a person born in wedlock to a U.S. citizen mother and non-U.S. citizen spouse, with a citizenship claim to be adjudicated under INA 301(g) (see 8 FAM 301.7-9). Note the exception to this in 8 FAM 301.7-9(C).
f. A child born abroad to an unmarried U.S. citizen genetic mother whose genetic parents are the U.S. citizen mother and an anonymous sperm donor, is considered for citizenship purposes to be a person born out of wedlock to a U.S. citizen mother, with a citizenship claim to be adjudicated under INA 309(c) (see 8 FAM 301.7-10).
8 FAM 304.3-2(B) Child Born Abroad to a Non-U.S. Citizen Mother (Birth Mother, Genetic Mother)
(CT:CITZ-73; 06-09-2022)
a. The following chart summarizes the adjudicative guidance in this section:
|
Type of ART |
In wedlock or out of wedlock? |
Law |
FAM Reference |
|
ART used, but no outside genetic material |
In wedlock to a U.S. citizen and a non-U.S. citizen |
INA 301(g) |
8 FAM 304.3-2(B) paragraph b |
|
Anonymous sperm donor |
In wedlock to a U.S. citizen and a non-U.S. citizen |
INA 301(g) |
8 FAM 304.3-2(B) paragraph c |
|
Sperm from spouse or anonymous sperm donor |
In wedlock to two non-U.S. citizens |
No Claim |
8 FAM 304.3-2(B) paragraph d |
|
Anonymous sperm donor |
Out of wedlock |
No Claim |
8 FAM 304.3-2(B) paragraph e |
b. A child born abroad to a married non-U.S. citizen genetic mother (who is married to a U.S. citizen) whose genetic parents are the non-U.S. citizen mother and her U.S. citizen spouse, is considered for citizenship purposes to be a person born in wedlock of a U.S. citizen parent and a non-U.S. citizen parent, with a citizenship claim to be adjudicated under INA 301(g) (see 8 FAM 301.7-9).
c. A child born abroad to a married non-U.S. citizen genetic mother (who is married to a U.S. citizen) whose genetic parents are the non-U.S. citizen mother and an anonymous sperm donor, is considered for citizenship purposes to be a person born in wedlock of a U.S. citizen parent an a non-U.S. citizen parent, with a citizenship claim to be adjudicated under INA 301(g) (see 8 FAM 301.7-9).
d. A child born abroad to a married non-U.S. citizen genetic mother (who is married to a non-U.S. citizen) whose genetic parents are the non-U.S. citizen mother and her spouse or an anonymous sperm donor, would not have a claim to U.S. citizenship.
e. A child born abroad to an unmarried non-U.S. citizen genetic mother whose genetic parents are the non-U.S. citizen mother and an anonymous sperm donor, would not have a claim to U.S. citizenship.
8 FAM 304.3-3 BIRTH ABROAD TO A GESTATIONAL MOTHER (legal PARENT, birth mother, but NOT genetic mother)
8 FAM 304.3-3(A) Child Born Abroad to a U.S. Citizen Gestational Mother (Legal Parent, Birth Mother, but not Genetic Mother)
(CT:CITZ-73; 06-09-2022)
a. The following chart summarizes the adjudicative guidance in this section:
|
Type of ART |
In wedlock or out of wedlock? |
Law |
FAM Reference |
|
Anonymous egg donor |
In wedlock to two U.S. citizens |
INA 301(c) |
8 FAM 304.3-3(A) paragraph b |
|
Anonymous sperm donor |
In wedlock to two U.S. citizens |
INA 301(c) |
8 FAM 304.3-3(A) paragraph c |
|
Anonymous egg donor |
In wedlock to non-U.S. citizen spouse |
INA 301(g) |
8 FAM 304.3-3(A) paragraph d |
|
Anonymous egg and sperm donors |
In wedlock to non-U.S. citizen spouse |
INA 301(g) |
8 FAM 304.3-3(A) paragraph e |
|
Anonymous egg and sperm donors |
Out of wedlock |
INA 309(c) |
8 FAM 304.3-3(A) paragraph f |
b. A child born abroad to a married U.S. citizen gestational mother who is the legal parent of the child at the time of birth in the location of birth, whose genetic parents are an anonymous egg donor and the U.S. citizen husband of the gestational mother, is considered for citizenship purposes to be a person born in wedlock of two U.S. citizens, with a citizenship claim adjudicated under the Immigration and nationality Act (INA) 301(c) (see 8 FAM 301.7-7).
c. A child born abroad to a married U.S. citizen gestational mother who is the legal parent of the child at the time of birth in the location of birth, whose genetic parents are an anonymous sperm donor and the U.S. citizen wife of the gestational mother, is considered for citizenship purposes to be a person born in wedlock of two U.S. citizens, with a citizenship claim adjudicated under INA 301(c) (see 8 FAM 301.7-7).
d. A child born abroad to a married U.S. citizen gestational mother who is the legal parent of the child at the time of birth in the location of birth, whose genetic parents are an anonymous egg donor and the non-U.S. citizen husband of the gestational mother, is considered for citizenship purposes to be a person born in wedlock of a U.S. citizen mother and non-U.S. citizen father, with a citizenship claim adjudicated under INA 301(g) (see 8 FAM 301.7-9). Note the exception to this in 8 FAM 301.7-9(C).
e. A child born abroad to a married U.S. citizen gestational mother (who is married to a non-U.S. citizen) who is the legal parent of the child at the time of the birth in the location of the birth, whose genetic parents are anonymous egg and sperm donors, is considered for citizenship purposes to be a person born in wedlock of a U.S. citizen mother and non-U.S. citizen father, with a citizenship claim to be adjudicated under INA 301(g) (see 8 FAM 301.7-9). Note the exception to this in 8 FAM 301.7-9(C).
f. A child born abroad to an unmarried U.S. citizen gestational mother who is the legal parent of the child at the time of birth in the location of birth, whose genetic parents are anonymous egg and sperm donors, is considered for citizenship purposes to be a person born out of wedlock of a U.S. citizen mother, with a citizenship claim adjudicated under INA 309(c) (see 8 FAM 301.7-10).
8 FAM 304.3-3(B) Child Born Abroad to a Non-U.S. Citizen Gestational Mother (Legal Parent, Birth Mother, but not Genetic Mother)
(CT:CITZ-73; 06-09-2022)
a. The following chart summarizes the adjudicative guidance in this section:
|
Type of ART |
In wedlock or out of wedlock? |
Law |
FAM Reference |
|
Anonymous egg and sperm donors |
In wedlock to U.S. citizen spouse |
INA 301(g) |
8 FAM 304.3-3(B) paragraph b |
|
Anonymous egg donor |
In wedlock to U.S. citizen spouse |
INA 301(g) |
8 FAM 304.3-3(B) paragraph c |
|
Anonymous egg and/or sperm donor(s) |
Out of wedlock |
No Claim |
8 FAM 304.3-3(B) paragraph d |
|
Anonymous egg and/or sperm donor |
In wedlock to non-U.S. citizen spouse |
No Claim |
8 FAM 304.3-3(B) paragraph e |
b. A child born abroad to a married non-U.S. citizen gestational mother (who is married to a U.S. citizen) who is the legal parent of the child at the time of the birth in the location of the birth, whose genetic parents are anonymous egg and sperm donors, is considered for citizenship purposes to be a person born in wedlock of a U.S. citizen father and non-U.S. citizen mother, with a citizenship claim to be adjudicated under INA 301(g) (see 8 FAM 301.7-9).
c. A child born abroad to a married non-U.S. citizen gestational mother who is the legal parent of the child at the time of the birth in the location of the birth, whose genetic parents are an anonymous egg donor and the U.S. citizen husband of the gestational legal mother, is considered for citizenship purposes to be a person born in wedlock of a U.S. citizen father and non-U.S. citizen mother, with a citizenship claim adjudicated under INA 301(g) (see 8 FAM 301.7-9).
d. If a child is born abroad to an unmarried non-U.S. citizen gestational mother, using anonymous egg and/or sperm donor(s), the child would not have a claim to U.S. citizenship.
e. If a child is born abroad to a married non-U.S. citizen gestational mother whose spouse is also a non-U.S. citizen, using sperm from a non-U.S. citizen, the child would not have a claim to U.S. citizenship.
8 FAM 304.3-4 BIRTH ABROAD, TO A SURROGATE, OF A CHILD WHO HAS A GENETIC TIE TO A U.S. CITIZEN MOTHER AND/OR U.S. CITIZEN FATHER
(CT:CITZ-73; 06-09-2022)
a. The following chart summarizes the adjudicative guidance in this section:
|
Citizenship of Genetic Parent(s) |
In wedlock or out of wedlock? |
Law |
FAM Reference |
|
Both U.S. citizens |
In wedlock (the U.S. citizen parents are married) |
INA 301(c) |
8 FAM 304.3-4 paragraph c |
|
U.S. citizen mother and Non-U.S. citizen spouse |
In wedlock (the U.S. citizen mother is married) |
INA 301(g) |
8 FAM 304.3-4 paragraph d(1) |
|
U.S. citizen father and non-U.S. citizen spouse |
In wedlock (the U.S. citizen father is married) |
INA 301(g) |
8 FAM 304.3-4 paragraph d(2) |
|
U.S. citizen mother and anonymous sperm donor |
Out of wedlock (the U.S. citizen mother is unmarried) |
INA 301(g) |
8 FAM 304.3-4 paragraph e(1) |
|
U.S. citizen mother and anonymous sperm donor |
In wedlock (the U.S. citizen mother is married) |
INA 301(c) or INA 301(g) |
8 FAM 304.3-4 paragraph e(2) |
|
U.S. citizen father and anonymous egg donor |
Out of wedlock (the U.S. citizen father is unmarried) |
INA 309(a) |
8 FAM 304.3-4 paragraph e(3) |
|
U.S. citizen father and anonymous egg donor |
In wedlock (the U.S, citizen father is married) |
INA 301(c) or INA 301(g) |
8 FAM 304.3-4 paragraph e(4) |
|
U.S. citizen father and surrogate |
Out of wedlock (the U.S. citizen father is unmarried) |
INA 309 (a) |
8 FAM 304.3-4 paragraph f(1) |
|
U.S. citizen father and surrogate |
In wedlock (the U.S. citizen father is married) |
INA 301(c) or INA 301(g) |
8 FAM 304.3-4 paragraph f(2) |
b. See 8 FAM 101.3-19 for the definition of surrogate. This subsection focuses on acquisition through the intended parents. It is possible for a child to acquire citizenship through a U.S. citizen surrogate if that surrogate qualifies as a mother under the other subsections of 8 FAM 304.3. Use those sections for acquisition
c. A child born abroad to a surrogate, whose genetic parents are a U.S. citizen mother and her U.S. citizen spouse, is considered for citizenship purposes to be a person born in wedlock to two U.S. citizen parents, with a citizenship claim to be adjudicated under INA 301(c) (see 8 FAM 301.7-7).
d. The following scenarios provide guidance on how to adjudicate cases for a child born abroad to a surrogate, whose genetic parents are one U.S. citizen and one non-U.S. citizen:
(1) A child born abroad to a surrogate, whose genetic parents are a U.S. citizen mother and her non-U.S. citizen spouse, is considered for citizenship purposes to be a person born in wedlock of a U.S. citizen mother and non-U.S. citizen spouse, with a citizenship claim adjudicated under INA 301(g) (see 8 FAM 301.7-9); or
(2) A child born abroad to a surrogate, whose genetic parents are a U.S. citizen father and his non-U.S. citizen spouse, is considered for citizenship purposes to be a person born in wedlock of a U.S. citizen father and non-U.S. citizen spouse, with a citizenship claim adjudicated under INA 301(g) (see 8 FAM 301.7-9).
e. The following scenarios provide guidance on how to adjudicate cases for a child born abroad to a surrogate using the genetic material of one U.S. citizen parent and one anonymous donor:
(1) A child born abroad to a surrogate, whose genetic parents are an unmarried U.S. citizen mother and an anonymous sperm donor, is considered for citizenship purposes to be a person born out of wedlock to a U.S. citizen mother with a citizenship claim to be adjudicated under INA 309(c) (see 8 FAM 301.7-10);
(2) A child born abroad to a surrogate, whose genetic parents are a married U.S. citizen mother and an anonymous sperm donor, is considered for citizenship purposes to be a person born in wedlock, with a citizenship claim to be adjudicated under INA 301(c) (see 8 FAM 301.7-7, if the mother is married to a U.S. citizen) or INA 301(g) (see 8 FAM 301.7-9, if the mother is married to a non-U.S. citizen). Note the exception to this in 8 FAM 301.7-9(C);
(3) A child born abroad to a surrogate, whose genetic parents are an unmarried U.S. citizen father and anonymous egg donor, is considered for citizenship purposes to be a person born out of wedlock to a U.S. citizen father, with a citizenship claim adjudicated under INA 309(a); or
(4) A child born abroad to a surrogate, whose genetic parents are a married U.S. citizen father and anonymous egg donor, is considered for citizenship purposes to be a person born in wedlock, with a citizenship claim to be adjudicated under INA 301(c) (see 8 FAM 301.7-7) (if the father is married to a U.S. citizen) or INA 301(g) (see 8 FAM 301.7-9) (if the father is married to a non-U.S. citizen).
f. The following scenarios provide guidance on how to adjudicate cases for a child born abroad to a surrogate, whose genetic parents are one U.S. citizen and the surrogate:
(1) A child born abroad to a surrogate, whose genetic parents are an unmarried U.S. citizen father and the surrogate is considered for citizenship purposes to be a person born out of wedlock to a U.S. citizen father, with a citizenship claim to be adjudicated under INA 309(a) (see 8 FAM 301.7-10); and
(2) A child born abroad to a surrogate, whose genetic parents are a married U.S. citizen father and the surrogate is considered for citizenship purposes to be a person born in wedlock, with a citizenship claim to be adjudicated under INA 301(c) (see 8 FAM 301.7-7) (if the father is married to a U.S. citizen) or INA 301(g) (see 8 FAM 301.7-9) (if the father is married to a non-U.S. citizen).
8 FAM 304.3-5 TRANSMISSION OF U.S. CITIZENSHIP THROUGH A SPERM or EGG DONOR
(CT:CITZ-73; 06-09-2022)
a. U.S. citizenship cannot be transmitted by an anonymous sperm or egg donor, even if a clinic, sperm bank, or intended parent(s) purport to certify that the sperm or egg was donated by a U.S. citizen. We must know the identity of a U.S. citizen to adjudicate a claim of derivative citizenship through them.
b. If a claim to citizenship is made through a sperm or egg donor who was not anonymous, or was initially anonymous but their identity was later revealed, contact AskPPTAdjudication@state.gov for guidance.
c. If a sperm or egg donor is not anonymous, but is not a U.S. citizen, their citizenship is irrelevant for purposes of establishing U.S. citizenship and are treated the same as anonymous donors within the language of 8 FAM 304.3.
8 FAM 304.3-6 ESTABLISHING A BIOLOGICAL RELATIONSHIP IN AN ART CASE
(CT:CITZ-73; 06-09-2022)
a. In most cases involving ART there is no shortage of documentation, and you may, as in any case, ask for appropriate supporting documentation when needed.
b. For cases involving a birth and genetic mother or gestational mother (8 FAM 304.3-2 and 304.3-3, examples of appropriate supporting documentation would be: certified hospital records or physicians’ records where the procedure occurred and a sworn statement from the physician who performed the procedure; medical records documenting pre-natal care of the surrogate or the gestational mother; medical records documenting underlying medical conditions that caused parent to seek ART (e.g., infertility or injury); insurance documents or other types of receipts documenting the payments made for the various different procedures. DNA testing may be recommended depending on the other medical evidence and circumstances of the case.
c. For cases involving surrogacy (8 FAM 304.3-4), examples of appropriate supporting documentation would include the medical records discussed in (b) above. Also, the intended parents are likely to have signed contracts or other legal instruments with any of the following: fertility clinic, physician, laboratories, the surrogate mother, and/or egg/sperm donor. These legal documents should detail the various parties’ intentions with respect to future parental rights as well as fees and payments to the various parties.
d. If you are not satisfied with the evidence presented, you may ask to interview the surrogate and/or her spouse or other family members, if logistically possible.
e. In cases involving a gestational and legal mother (8 FAM 304.3-3), in addition to the records discussed in (b) above, an officer may ask for photographs taken during the pregnancy or following the birth or other physical mementos (such as hospital bracelets).
f. Questions relating to family/genetic/blood relationships might be considered intrusive. Interviews should always be conducted with respect and sensitivity. Nevertheless, when there are fraud indicators, posts must ensure that discrepancies are reviewed and resolved.