The United States Citizenship and Immigration Services Department has made a policy decision expanding the definition of “mother” and “parent” under the Immigration and Nationality Act (INA) to include non-genetic gestational mother, (i.e.) surrogate mother using assisted reproductive technology. This would effectively mean that the surrogate mother would have a right to petition for US citizenship if she is a surrogate for couple holding US citizenship and she is considered to be the legal parent of the child at time of birth of the child.
The following are few of the policy highlights as found in the website of the United States Citizenship and Immigration Services:
- A “natural mother” or “natural father” is a genetic parent or gestational parent. Accordingly, the
“natural mother” of a child born out of wedlock includes a non-genetic gestational mother if she
is the legal parent at the time of birth.
- A gestational mother has a petitionable relationship without a genetic relationship to the child, as
long as she is also the child’s legal parent at the time of birth.
- A non-genetic gestational legal mother who is a U.S. citizen may transmit citizenship at birth, or
after birth, when all other pertinent citizenship and naturalisation requirements are met.
It is important that this policy decision would only be applicable in jurisdictions where the surrogate mother is considered to be the legal mother of the child at the time of birth of the child. In India the Commissioning Couple are considered to be the legal parents of the child even at the time of the birth of the child. In India, the surrogate mother and the commissioning couple are not required to undergo any legal procedures in order to relinquish or gain parental rights over the child. Moreover, the name of the commissioning couple are found in the birth certificate of the child at time of birth of the child. That being the case, it would be highly improbable that this policy decision could be applicable for any surrogacy arrangements taking place in India. However, if the surrogacy agreement provides for parental rights in favour of the surrogate mother at time of birth, there could be a possible application of this policy change as far as India is concerned.
This apart, it would appear that a child born abroad and is genetically unrelated to the US commissioning couple would be able to obtain US citizenship.