Surrogacy and Birthright Citizenship: What Intended Parent Needs to Know

Surrogacy and birthright citizenship law is a highly debatable topic, especially in the USA. It can be a crucial lifeline or the only promising way for some hopeful parents. Gestational Surrogacy is no doubt one of the best options for many Intended Parents to build their own families. But, where some Intended Parents worry about what country their surrogate baby will be born in, others are more concerned about how to take the child home after birth. Why?

Because birthright citizenship can be a very uncomfortable subject to discuss and many Intended Parents consider international surrogacy in countries with favorable surrogacy laws, such as in the USA. So, how does it work when pursuing surrogacy, especially surrogacy programs that may require that you travel abroad?

Although the discussion can be difficult, know that most surrogacy programs will be well-versed in the fields of contractual and family law. They are aware of the prevailing laws not only in the country they’re based in but also in your home country. This will help make sure you can take your surrogate baby home once he or she is born.

Also, it is essential to have a framework for these kinds of questions. It will help reduce fear and increase confidence when discussing your worries with your surrogacy agency. However, there is one thing surrogacy programs all around the world have taught us. That is, there’s always a helping hand ready to assist in providing solutions and answering our most challenging questions.

What is Citizenship by Birth?

Citizenship is not an easy issue to navigate. If you ever have reasons to leave your home country for abroad, you will understand just how crucial the concept of citizenship is. For intended parents who pursued international surrogacy, this becomes an even harder and important discussion. This is mainly because of the varied surrogacy laws in different countries.

Most parents are not too concerned about whether or not their baby would qualify for dual citizenship. However, they usually worry about how exactly to ensure they take the baby home after birth. This is how navigating laws governing birthright citizenship and its impact on surrogacy can be difficult for many prospective parents, rendering some of them stateless.

This is due to differences in citizenship laws from one country to the other. If a baby is born in a country different from the parents’ home country to an international surrogate, some countries can make it hard for the baby to get the parents’ citizenship. On the contrary, some countries have laws favorable to surrogacy. And, it becomes easy for the surrogate baby to acquire both domestic and international citizenship. This process can even be more nuanced in case the parents need to make use of donated sperm and eggs to create the baby. Here’s why:

Jus Soli

Jus Soli is a Latin phrase that means “right of soil”. It is one of the laws governing how citizenship is determined all around the world (the other is jus sanguinis). For many years, the “right of soil” was the predominant citizenship rule in the Western World and throughout the Americas. However, it is rarely adopted in other places.

This is mainly because jus soli was part of the English common law. A law that is derived based upon the verdict of court cases rather than being a statute formerly written by the legislative authorities.

Jus soli is still the common rule throughout the Americas. However, a lot of countries that apply it, have various interpretations regarding how jus soli needs to be used. These exceptions or extra frameworks of the laws are known as lex soli and Intended Parents choosing gestational surrogacy should be aware of them.

Lex Soli

Lex Soli modifies existing jus soli by further making clear the circumstances that would allow for citizenship to be acquired by birth in certain countries.

A lot of countries that use the jus soli laws modifies them. These modifications give them the right to deny birthright citizenship to babies born to diplomats or parents working for that country’s government, whether as an emissary or a consultant. Countries that operate these forms of Lex Soli include Tanzania, Brazil, and the United States.

The USA had taken their lex soli modifications a step further by adding Denial of Citizenship by birth to babies born to enemy soldiers who are living in the country illegally. Countries like Peru, Chad, and Costa Rica, require that the baby born outside the country register their citizenship before age 18 for citizenship to be continuously recognized.

Jus Sanguinis

The concept behind jus sanguinis is the direct opposite of jus soli. It implies that where the baby is born is not as important as who the baby was born to. This law can have a great significance towards hopeful parents choosing surrogacy and the surrogate baby.

Jus Sanguinis originates from Roman law, which influenced the civil-law systems of many European countries. It is a Latin term meaning “right of blood”. Jus Sanguinis focuses on the child’s parentage when deciding the birthright and citizenship of a baby. In this case, the ethnicity or nationality of one or both of the baby’s parents becomes a preference to determine citizenship.

Generally, these laws require that one or both parents of the baby be citizens of a particular state for the child to acquire that citizenship. This practice is still very much debated. Nonetheless, a lot of countries across the world have a certain ruling that combines both jus sanguinis and jus soli. One common modification of jus sanguinis is that the baby has the right to the citizenship of the father. Other countries that use jus sanguinis laws may approve the baby citizenship application in view of jus soli status.

The Canadian citizenship law is a great example of this combination of jus sanguinis and jus soli. According to Canada’s nationality law, any baby born to parents who are Canadian citizens is automatically a citizen of the country. However, in the year 2009, Canada started to restrict its citizenship by decent rulings with generational limits. This means that babies born abroad to parents who are Canadian citizens were conferred citizenship by descent, but the children of these babies won’t be.

Citizenship By Birth: Understanding Jus Sanguinis and Jus Soli Laws with Surrogacy

You can see that citizenship by birth can be hard to navigate, especially when considering international surrogacy programs. Although citizenship by birth is quite favorable in the USA, it greatly varies in other countries. In this type of surrogacy, the home countries of the would-be parents may have some rules that prevent babies born abroad to a foreign national from gaining the citizenship of the parents.

As a matter of fact, this is one of the major criticisms of recent interpretations of jus sanguinis and jus soli laws. The influence is fueled by the gaps that can render some parents or children stateless.

For example, if X is born in the United States, to an American Surrogate, for hopeful parents in France, that baby may not be eligible for French citizenship (if the sperm and eggs used don’t belong to the parents). Similarly, the Intended French Parents may not be able to obtain American citizenship, which can lead to a situation where neither the parents nor the baby could live together in either of the two countries.

Final Words:

The above mention scenario might be an extreme case. However, it shows the reasons why it’s essential for hopeful parents to know the laws and statutes governing surrogacy in their countries and the countries where their surrogate lives in. Hence, it is very important for couples or individuals considering surrogacy to find a program that perfectly suits their unique needs.

At Physician’s Surrogacy, we make sure your surrogacy journey remains stress-free and smooth. Our legal coordinator will help you to care for matters regarding gestational surrogacy laws and regulations. To learn more, simply schedule a complimentary consultation with us. You can also visit our website and have a chat with our team.