It is natural that most all foreign couples considering surrogacy program in Ukraine as well as in any other country overseas are planning to bring their child home upon his/her birth. This being said, the Intended Parents should be aware that legal relationship between the Intended Parents and the child born as a result of a surrogacy arrangement overseas, in particular citizenship for a child, will be governed by the U.S. Law.
Transmission of U.S. citizenship at birth to a child born abroad is governed by Immigration and Nationality Act (INA) Sections 301 and/or 309. The determination of citizenship to children born overseas to a U.S. parent falls within jurisdiction of the U.S. Department of State, which interprets the INA in the way that the U.S. citizen must have a biological connection to a child in order to transmit U.S. citizenship to this child at birth. Therefore, being named as a parent on a Ukrainian birth certificate for a child born as a result of surrogacy arrangement in Ukraine does not mean that the birth certificate will meet the U.S. immigration and citizenship requirements.
The Department of State determines the citizenship of each child born as a result of surrogacy program individually, on a case by case basis, after carefully considering the specific facts surrounding the child?s birth and his or her parents? situation. In practice, the best evidence available to parents to show their blood relationship to a child born to a surrogate mother in Ukraine is DNA testing, which cannot be done until after the child is born.
A U.S. citizen parent who has a child using a surrogate mother in Ukraine may apply for a Consular Report of Birth Abroad of an American Citizen (CRBA) and a U.S. passport for the child at the U.S. Embassy in Kyiv (Consular Section). A CRBA certifies that a child born abroad is a U.S. citizen. A CRBA does not determine who the child?s legal parents are. So it lists only the name/s of the U.S. citizen parent/s with a biological connection to the child. Accordingly, if the spouse of the transmitting U.S. citizen parent does not have a biological connection to the child or is not a U.S. citizen, the spouse will not be recorded on the CRBA even if he or she is listed on the local Ukrainian birth certificate.
If the U.S. Embassy determines that the child is a U.S. citizen, he or she will need a U.S. passport to enter the United States. As part of the application process, the Intended Parents should provide to the local U.S. Embassy evidence of the child?s identity, birth, and citizenship. In an Assisted Reproductive Technology case, the Intended Parents would be required to provide medical and documentary evidence of the child?s conception and birth, as well as evidence of the parents? identity, citizenship, and requisite physical presence in the United States. They also will need to arrange for DNA tests of the child that should be performed by an authorized American company.
In the light of the above, if the child is not biologically related to a U.S. citizen parent, the child will not acquire U.S. citizenship automatically at birth.
Furthermore, should the child have blood relationship only to the U.S. citizen father, but not the father?s wife, the case would be treated as a birth out of wedlock to a U.S. citizen father, pursuant to Immigration and Nationality Act, Section 309(a), and the father would have to meet the additional requirements of that section otherwise INA 301 requirements would apply, including certain residence requirements.