A child born through surrogacy abroad to US citizen parents is considered a US citizen from birth as long as his or her parents meet certain requirements.
In 2021 the US Department of State (DOS) announced an updated interpretation of the requirements for gaining US citizenship at birth, as set forth in the Immigration and Nationality Act (INA). The DOS’s new policy “takes into account the realities of modern families and advances in ART” and means that a child born abroad through surrogacy acquires US citizenship at birth if the Intended Parent or Parents meet the legal conditions.
For those using a gestational carrier outside of the USA, very broadly the child must be genetically related to either a US citizen parent, or the biological parent must be married to a US citizen at the time of the birth. The specific requirements Intended Parents will have to meet and prove are detailed under INA section 301 or 309, and will be dependent on elements including marriage status, biological relationship to the child, length of physical presence in the USA, and citizenship status of the Intended Parent or Parents.
At MSJ we want to make the legal process of gaining your child’s US citizenship and returning home less stressful, and have partnered with top ART immigration lawyers in the USA who will support you through the process. At the beginning of your journey you will have an initial consultation with your attorney to assess your status and provide an overview of the documentation you’ll need to provide, and the expected steps you’ll need to follow. Following your child’s birth they will help you file for a Consular Report of a Birth Abroad (CRBA) with the US Embassy in Mexico City, and support you through that process.
You will also work with our Mexican legal partners, while your surrogate has her own legal team. We will support you with a surrogacy agreement, or sometimes called an intention document. This is a non-legally binding document that helps everyone involved to agree intentions and reach agreement as to how it will work, before commencing the surrogacy process. It’s really helpful for both surrogates and intended parents to ensure effective communication from the start of your journey. Your lawyers will also ensure that you are granted the legal parentage of your baby by applying to the Mexican courts for parentage.
When a child of USA citizen parents is born abroad, even through surrogacy, the child is considered a US citizen from birth as long as certain conditions are met. Your US immigration lawyer will discuss these with you in your first meeting as the requirements vary depending on who is genetically related to the child, and if the Intended Parents are married. After your child’s birth, you will apply at the US Embassy for a CRBA, a social security number, and a US passport. While the CRBA will prove that your child was a US citizen from the time of birth, it doesn’t serve as proof of their legal parentage. Your legal status of parentage under Mexican law, and the Mexican birth certificate issued by the Office of the Civil Registry (Oficina del Registro Civil) is accepted by the US government. However, some parents may wish to proceed with a confirmatory adoption after returning to the USA, especially for a non biologically-related parent.
You can’t apply for a CRBA until the child has been born and has had their Mexican birth certificate issued, however your US immigration lawyer will pre-load all your documentation into an e-application so that you can finalize your application as soon as you have the birth certificate.
Rest assured at MSJ we’ve considered every step of the journey. The lawyers we work with in Mexico and the USA are experienced and so are our membership team. They’ll help with all of your questions every step of the way: we’ve got you.
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