On October 28, 2014, the United States Citizenship and Immigration Services (USCIS) issued new policy guidance to expand the Definition of “Mother” and “Parent” to include gestational mother using assisted reproductive technology (ART).
As described in the USCIS Policy Manual, http://www.uscis.gov/policymanual/HTML/PolicyManual-Volume12.html. ART refers to fertility treatments where either the egg or sperm, or both, is handled outside the body. It allows for a woman to bear a child to whom she does not have a genetic relationship through the use of a donor egg. As a result, a mother could have a biological relationship to her child, but not a genetic one. Previously, a genetic relationship with a U.S. citizen parent was required in order for a child born abroad to acquire citizenship at birth through his or her parent.
Recognizing the complication created by ART and other advanced reproductive technologies, USCIS and the Department of State (DOS) collaborated in the development of the new policy to establish that the term “Mother” and “Parent” under the Immigration and Nationality Act (INA) includes any mother who: 1) gave birth to the child and 2) was the child’s legal mother at the time of birth under the law of the relevant jurisdiction. This new definition now requires that a non-genetic, gestational mother (person who carried and gave birth to a child, even when a donor egg was employed) to be recognized under the INA as the same as those mothers who bear genetically related children.
As such, a non-genetic gestational mother will enjoy the following benefits under the new policy:
- Be able to petition for her child based on their relationship;
- Be eligible to have her child petition for her based on their relationship;
- Be able to transmit U.S. citizenship to her child, if she is a U.S. citizen and all other pertinent citizenship requirements are met.