Tuesday, September 14, 2010
Titshaw: “Sorry, Ma’am, Your Baby is an Alien: Outdated Immigration Rules and Assisted Reproductive Technology”
Scott Titshaw (Mercer University School of Law) has posted Sorry, Ma’am, Your Baby is an Alien: Outdated Immigration Rules and Assisted Reproductive Technology, 12 Florida Coastal Law Review (forthcoming 2010) on SSRN. Here is the abstract:
The growing use of assisted reproductive technology (ART) and legal recognition of same-sex relationships are raising questions regarding the recognition of parent-child relationships. State and foreign family law have been wrestling with these issues for decades, but U.S. immigration law is lagging far behind.
So far, guidance exists on only one ART related issue under the Immigration and Nationality Act (INA): whether a U.S. citizen transmits her citizenship to a child born abroad. Unfortunately, that guidance is contradictory. The U.S. Department of State (DOS) requires genetic kinship for citizenship transmission. The Ninth Circuit Court of Appeals focuses on the parents’ marriage, requiring no genetic link between a child born in wedlock and a U.S. citizen parent.
Married, different-sex couples are the most likely cohort to use ART to build a family. However, this issue may be even more important to same-sex couples. Since birth certificates are the primary evidence used to demonstrate a parent-child relationship, they are more likely to suffer from a genetic-relationship requirement.
This article aims to resolve this and other issues regarding INA recognition of parent-child relationships stemming from ART. It briefly reviews the various ways that state laws have dealt with ART related parentage issues. It then explores the legislative, administrative and judicial history of the relevant INA provisions, paying particular attention to developments dealing with “legitimacy,” an issue that raised similar questions during the twentieth century. It argues for deference to state and foreign law in determining the parentage of children conceived through ART and whether the child was “born in wedlock.”