Article on Determining Citizenship for Assisted Reproduction Children Born Abroad

Kristine S. Knaplund (Professor of Law, Pepperdine University School of Law) recently published an article entitled, Baby Without a Country: Determining Citizenship for Assisted Reproduction Children Born Overseas, 91 Denv. U. L. Rev. 355 (2014). Provided below is the article’s abstract:

The United States has long followed the English common law view that citizenship can be attained at birth in two ways: by being born in the U.S. (jus soli) or by being born abroad as the child of a U.S. citizen (jus sanguinis).  For a child born abroad to claim citizenship through jus sanguinis, the State Department for many years required proof of a blood relationship between the child and a U.S. citizen.  While a genetic test serves this purpose for children conceived coitally, advances in assisted reproduction techniques (ART) that have separated the two functions of a birth mother—namely gestation and genetics—have greatly complicated the definition of parentage.  In modern times this has led to unjust results, including the recent denial of U.S. citizenship to children born to American mothers who used donated eggs to conceive and give birth abroad.  While the State Department has recently modified its regulations to allow the woman giving birth to claim maternity despite the lack of a genetic tie, in many cases it continues to use a parentage standard that dates back to 1952, when assisted reproduction techniques such as in vitro fertilization or the use of donated gametes had not yet been developed.  This Article seeks to propose a workable solution to the question of citizenship for children born overseas to American parents via ART. It first explores the origins of jus sanguinis in Roman and English common law along with ancient and medieval views of conception and maternity, and examines three prevailing methods to determine parentage: the parturient test, genetic test, and parental intent test.  Ultimately the Article recommends that the State Department acknowledge advances in ART, and the different ways children are nowadays conceived, by altering its jus sanguinis policy to allow several presumptions of parentage to apply.