Kristine Knaplund on Determining Parentage for ART Children Born Abroad

Kristine S. Knaplund (Pepperdine University School of Law) has posted What's Blood Got To Do With It? Determining Parentage for ART Children Born Overseas on SSRN. Here is the absract:

The United States has long followed the English common law view that citizenship can be attained at birth in two ways: by being born in the U.S. (jus soli), or by being born abroad as the child of a U.S. citizen (jus sanguinis). The first, jus soli, is now part of the 14th amendment to the U.S. Constitution: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the state wherein they reside.” Jus soli theoretically does not inquire into the citizenship of the child’s parents; the relevant fact is that the birth takes place in the United States. Jus sanguinis, in contrast, arises from the parent-child relationship. The State Department translates jus sanguinis as “from the bloodline,” citing it as the “traditional Roman law principle.” By “natural parent,” the State Department means a blood relationship with a U.S. citizen: “It is not enough that the child is presumed to be the issue of the parents’ marriage by the laws of the jurisdiction where the child was born.”

A purely genetic connection to the child is sufficient to establish parentage in relatively few instances in American law. One is child support: even if the genetic father has had no contact with the child, and has done nothing to establish a relationship (or even been prevented from knowing about the child), the genetic connection may be enough if no other presumed father is on the scene. This article explores a second instance in which the genetic connection is paramount: when an American citizen gives birth abroad. A genetic test works well for children conceived coitally, but may wreak havoc for those conceived using assisted reproduction techniques (ART). Citizenship has recently been denied to the children of two American women who used anonymously donated gametes to conceive and give birth to a child: one in Israel, and one in Switzerland; in a third case, the U.S. Embassy refused to recognize the birth mother as the child’s mother because she had used donated eggs and given birth to the child in India.

Part I of this Article discusses the origins of jus sanguinis in Roman and English common law, including ancient and medieval views of conception and maternity in determining the child's bloodline. Not surprisingly, these views differ significantly from those held today. Taking into account this scientific background, Part II examines citizenship laws in early U.S. history, and assumptions of who were the parents of a child, both in wedlock and out of wedlock. While the definition of paternity has always taken note of biology as well as a man’s relationship to the birth mother, science began to play a more prominent role in the legal definition of parenthood once blood grouping and blood tests were available in the early 1900s. Part III then introduces the law of U.S. citizenship today, which in its main outlines is the same as first codified in 1952. The ability of DNA testing to positively identify the father in most cases, plus advances in ART that separate the two functions of the birth mother – genetics and gestation – have greatly complicated the definition of parentage for children, but the State Department has, in large part, continued to use the same parentage standard first detailed in 1952. Part IV examines and critiques three methods of identifying parentage: the State Department’s preferred method (genetics), the common law parturient test, and the recently developed intent test, to examine which method of determining parentage should be used for children born abroad. Part V concludes the article.