The transmission of U.S. citizenship at birth to a child born abroad through the use of assisted reproduction is governed by the Immigration and Nationality Act Sections 301 or 309. In order to confer U.S. citizenship, the U.S. citizen parent must have a biological connection to the child. This means either a U.S. citizen father must be the genetic parent of the child or the U.S. citizen mother must be the genetic mother or the gestational and legal mother of the child. If the parents do not have a biological connection to the child, the child will not be a U.S. citizen at birth.
Unfortunately there are circumstances where the child born by a foreign surrogate cannot obtain citizenship of the country where he or she is born because the surrogate mother is not considered the parent of the child and the child cannot acquire U.S. citizenship because the child is not biologically related to the U.S. citizen parent. This is often referred to as a “stateless child.” Before entering into a foreign surrogacy arrangement, it is extremely important to discuss the possible immigration issues with an immigration attorney so that there are no problems with bringing the child back to the United States.