On February 6th, the American Bar Association’s House of Delegates convened in Miami for its Midyear Meeting to debate and vote on the adoption of resolutions that span a variety of current issues including immigration, health care, and veteran’s benefits. Among the twenty-nine resolutions that were adopted was Resolution #113, which urges the U.S. Department of State to expand its definition of citizenship under the Immigration and Nationality Act (INA), 8 U.S.C. section 1401.
The resolution makes four major requests. First, it recommends that State interpret the INA in such a way that recognizes children born to intended parents as citizens. Recognition would be given regardless of a biological relationship between the parent and child as long as one of the intended parents is a U.S. citizen and legally recognized as the child’s parent. Second, the resolution recommends that State creates guidelines to help ensure the validity of the intended parent relationship, which must be verified prior to acquiring citizenship. Third, it asserts that children who are born to married parents should not be identified as “born out of wedlock”. Finally, the resolution maintains that the three prior points be applied retroactively.
This resolution bears significance for several reasons that coalesce around inclusion. The current interpretation of INA has been criticized for being incomplete in analyzing how parents may pass citizenship to their children conceived through Artificial Reproductive Technology (ART). According to the ABA report, there are scenarios under the current interpretation that may leave a child “stateless” in the eyes of the State Department. As it stands today, INA’s interpretation maintains that a U.S. citizen parent must have a genetic relationship to a child in order to automatically pass citizenship to a child born abroad. However, this new interpretation would expand that definition to include a child that does not have a genetic relationship to the mother.
A major reason the adoption of Resolution 113 is so crucial is because ART and its capabilities are growing and changing quickly. The ABA report notes that this rapid growth creates gaps in current interpretations of citizenship for children who are conceived through ART and born abroad. One notable facet of the resolution that seeks to combat this concern is the idea of demonstrated “parental intent”. This intent establishes the required relationship that allows for the passing down of U.S. citizenship. This piece is recognized as consistent with interpretations of family law in various American and foreign jurisdictions that have confronted this very same question of citizenship.
The ABA believes that this resolution presents a reasonable solution to the question of citizenship among children born through ART. This resolution not only expands the most recent interpretation of the INA to include children as citizens who may not be biologically connected to their parents, but also works retroactively to include all children who have been affected by the previous interpretation. Ultimately, it seeks to close any gaps that may be left open due to how quickly ART develops, so that all children may be recognized under their state.
Resolution 113 may be read in full below:
RESOLVED, That the American Bar Association urges the United States Department of State to:
1) interpret the Immigration and Nationality Act, 8 U.S.C. § 1401, to recognize those children born to intended parents, even if those legally recognized parents do not have a biological (genetic or gestational) relationship to the child, so long as at least one of the intended parents is a U.S. citizen who is legally recognized as the child’s parent by the country of birth or the intended parent’s state of domicile and the relevant resident or physical presence requirements are me;
2) create guidelines related to the recognition of children born to intended parents that will ensure the validity of the intended parent relationship and that it is demonstrated prior to acquisition of citizenship;
3) recognize children born to parents who are legally bound by marriage, civil unions, or other similar forms of legal partnership as not “born out of wedlock” and analyze them under 8 U.S.C. §1401 rather than 8 U.S.C. § 1409; and
4) apply these three expanded interpretations retroactively.