I'd always thought that my children would automatically be Americans. That no matter where I lived, I would pass down my citizenship to them like I passed down my genes. It turns out it isn’t that simple.
In October 2012, I was standing in line at the U.S. consulate in Montreal while my significant other, Neil, strolled our baby around the waiting room. A woman behind a Plexiglas window signaled me to approach, and I handed over everything I thought we needed to document our daughter as a U.S. citizen. The woman behind the window studied the papers and then asked for our marriage certificate. “We’re not married,” I told her.
If we had been, our daughter would have become a citizen on the spot. But the U.S. Department of State is not so quick to confer citizenship on babies born abroad “out of wedlock.” In fact, the rules that determine what babies can become citizens seem to be butting up against the modern circumstances under which Americans are having babies.
Millions of U.S. citizens live abroad. In 2012, the State Department registered 64,991 American babies born overseas. Consular and embassy officials looked to the State Department’s Foreign Affairs Manual for guidance when it came to granting those kids citizenship. The manual draws its strength from Section 301 of the Immigration and Naturalization Act of 1952—which says that a child must be “born of” a U.S. citizen—and guides officials to be sure that the parent who is the citizen has “spent enough time in the United States to absorb American customs and values.” The thinking is that these, in turn, would be transmitted to the child. The State Department has historically interpreted “born of” to mean a genetic connection.
Laura Fielden's daughter was denied U.S. citizenship because the child didn't have a genetic or gestational connection to her American parent.
In Montreal, no official asked if my daughter came from my own egg because for heterosexual couples a genetic connection is usually presumed. That doesn’t hold true for same-sex couples. After Laura Fielden, a U.S. citizen who lives in Spain, applied for citizenship for her daughter, an official asked for a hospital report to determine who was the mother. “I’m one of the mothers,” Fielden told the official. But her Spanish wife had been the one to give birth. Early in February, Fielden’s daughter was denied U.S. citizenship because the child didn’t have a genetic or gestational connection to her American parent.
Lisa Lynch, an American who lives in Montreal, also had to account for the circumstances of her daughter’s birth. But Lynch had a different outcome: After receiving an embryo transplant, Lynch’s Israeli wife gave birth to their daughter in Montreal. When Lynch applied for citizenship she was told her child had to be genetically American. “But my child is genetically American!” she told them. As it happened, an American couple had donated leftover embryos to the couple, and Lynch had the records to prove it, including receipts from the California clinic that had shipped the embryo to Montreal. “The consulate was sort of taken aback,” she says. Officials told Lynch they might need DNA proof from her donors; the couple was ready to comply.
With the State Department rules in mind, consider the complications for, say, couples who use a surrogate and an anonymous sperm or egg; a U.S. man who is married to a foreigner and uses an anonymous or foreign sperm donation; or a gay couple that doesn’t use American sperm—except, in this last case, says State Department public affairs officer Elizabeth Finan, citizenship could be granted if “an American woman carries the baby and is also the legal mother of the child at the time and place of the child’s birth, and meets the physical presence requirements.” Finan adds that in a case like Fielden’s, in which a non-citizen woman gave birth, citizenship could be passed along if “the sperm donor is American, meets transmission requirements, legitimates the child, and agrees to support the child until age 18.” Only in January were the rules expanded to allow American women who had conceived with donated eggs to pass on citizenship.
Since the State Department’s rules say a child has to be connected to an American, it is conceivable that a child born from an American embryo, anywhere in the world, could claim citizenship—regardless of his or her parents’ nationalities. According to Finan, this is true, “as long as the genetic parents meet the transmission requirements.” “That doesn’t happen every day, but as we interpret the law, we wouldn’t be able to deny citizenship,” she adds. “The intent, of course, is that a child born abroad has a connection to the U.S.”
Which brings us back to me and Neil and Montreal: After a long wait, we were told we would have to prove that at least one American parent had spent a certain amount of time stateside before the child’s birth. I was holding the baby, so Neil offered to be the one to pass down citizenship. The consular official told us that he’d have to prove he’d been “physically present” in the U.S. for at least five years, two of them after the age of 14. (Married U.S. citizens need only to have resided in the U.S. at some point before their child was born.) And as an unmarried father, he’d also have to establish a genetic relationship “by clear and convincing evidence,” and agree to financially support the child until age 18.
But mothers only have to prove one year stateside, so we decided I would transmit citizenship. So how to prove physical presence in the U.S.? I had paid a mortgage in Chicago, but that didn’t mean I’d lived there. Almost everything you create a paper trail for can be done from afar. When I asked if an affidavit from a former employer would work, I was told no.
I asked the official for suggestions, and we were shuffled to yet another official. That one said college transcripts might do the trick, which didn’t make sense; like most students, I’d taken summers off. The official seemed apologetic, and sheepishly offered a metaphor about a creaky old house in need of renovations.
I ordered my transcripts and sent them off in a special envelope the consulate had given me. After a few weeks, my daughter received her passport, her Social Security number, and a Consulate Report of Birth Abroad—the equivalent of a U.S. birth certificate.
In the end, I was simply inconvenienced. Not so for Laura Fielden in Spain. For now, she can’t bring her daughter to the U.S. for more than 90 days a year.