Is this surrogate baby an American citizen by law?

[Value Buy]

www.msn.com/en-us/news/us/both-parents-are-american-the-us-says-their-baby-isnt/ar-AABGXbe?li=BBnb7Kz

[Value Buy]

This is an interesting twist in American law.
IMO, The law has not kept up with science technology.
Should it?

[chiver78]

I don't understand the difference between using a surrogate and adopting a child, as far as obtaining American citizenship for the child. 

specifically in this case, where there was donor sperm and neither parent has biological ties to the child. how is it different than a straight-out adoption? 

[Value Buy]

May 22, 2019 7:18:52 GMT -5 chiver78 said:

I don't understand the difference between using a surrogate and adopting a child, as far as obtaining American citizenship for the child. 

specifically in this case, where there was donor sperm and neither parent has biological ties to the child. how is it different than a straight-out adoption? 

If I read it correctly, The donor sperm was from the British born man with American citizenship.
Since the other "husband?" was American born, I would think the baby is an American citizen.......
Not sure why being gay has anything to do with it. Another case of old law not keeping up with the times

[chiver78]

ah, I misread that. it sounds as though this case is being handled exactly the same way as the twins born via surrogate to another couple where one man is a citizen and the other isn't - the biological child of the citizen was granted citizenship while the other twin was not. that case is also in a massive legal battle. 

and yes, an old law not keeping up with the times is exactly right. hopefully this can be addressed sooner rather than later, so more children aren't caught in limbo. 

[oped]

Both parents are American citizens correct? 

[Value Buy]

May 22, 2019 7:43:38 GMT -5 oped said:

Both parents are American citizens correct? 

One isborn in America.
The sperm donor American citizen was born in Britain to an American citizen mother  

[oped]

So all American citizens....

[chiver78]

one would think. why does it matter where the one man was born, if he's a citizen? 

[oped]

This is what the state department sees as a priority? 

[Value Buy]

May 22, 2019 8:00:36 GMT -5 oped said:

This is what the state department sees as a priority? 

It is antiquated law that Congress should work on. State Department is following law procedures that are in place.

[andi9899]

May 22, 2019 7:25:53 GMT -5 Value Buy said:

May 22, 2019 7:18:52 GMT -5 chiver78 said:

I don't understand the difference between using a surrogate and adopting a child, as far as obtaining American citizenship for the child. 

specifically in this case, where there was donor sperm and neither parent has biological ties to the child. how is it different than a straight-out adoption? 

If I read it correctly, The donor sperm was from the British born man with American citizenship.
Since the other "husband?" was American born, I would think the baby is an American citizen.......
Not sure why being gay has anything to do with it. Another case of old law not keeping up with the times

This was my thought too. The child does have a biological connection with one of the fathers, so what's the problem? Is this in actuality about them being gay?

And like chiver said, what about adoption? Why can't they just legally adopt her? People adopt babies born abroad every day.

[andi9899]

May 22, 2019 7:55:22 GMT -5 oped said:

So all American citizens....

Yes. The fathers are both American citizens according to the article though one of them was born in Britain. I still don't see why this child is being denied citizenship.

[justme]

May 22, 2019 8:22:25 GMT -5 andi9899 said:

May 22, 2019 7:25:53 GMT -5 Value Buy said:

If I read it correctly, The donor sperm was from the British born man with American citizenship.
Since the other "husband?" was American born, I would think the baby is an American citizen.......
Not sure why being gay has anything to do with it. Another case of old law not keeping up with the times

This was my thought too. The child does have a biological connection with one of the fathers, so what's the problem? Is this in actuality about them being gay?

And like chiver said, what about adoption? Why can't they just legally adopt her? People adopt babies born abroad every day.

Duh.

[djAdvocate]

May 22, 2019 7:25:53 GMT -5 Value Buy said:

May 22, 2019 7:18:52 GMT -5 chiver78 said:

I don't understand the difference between using a surrogate and adopting a child, as far as obtaining American citizenship for the child. 

specifically in this case, where there was donor sperm and neither parent has biological ties to the child. how is it different than a straight-out adoption? 

If I read it correctly, The donor sperm was from the British born man with American citizenship.
Since the other "husband?" was American born, I would think the baby is an American citizen.......
Not sure why being gay has anything to do with it. Another case of old law not keeping up with the times

if the father is a US citizen, the baby is a US citizen, according to USC 8.1401 (I think that is the right number)

[billisonboard]

"Congress, don't leave it to the bureaucrats, simply update the code." Doesn't seem that hard.

[Tennesseer]

This is the problem.  From the link in the opening post:  

"Such a designation comes with extra requirements for transmitting citizenship, including showing that a biological parent is an American citizen who has spent at least five years in the United States."

The biological father is the former Brit now U.S. citizen and he may have not lived in the U.S. as an American citizen for at least five years.  The article does not mention when he became a U.S. citizen.

This is the same argument some people made in that President Obama was not a natural-born American citizen:

“If only one parent was a U.S. citizen at the time of your birth, that parent must have resided in the United States for at least ten years, at least five of which had to be after the age of 16.” Barack Obama’s father was not a U.S. citizen and Obama’s mother was only 18 when Obama was born, which means though she had been a U.S. citizen for 10 years, (or citizen perhaps because of Hawaii being a territory) the mother fails the test for being so for at least 5 years **prior to** Barack Obama’s birth, but *after* age 16. It doesn’t matter *after* . In essence, she was not old enough to qualify her son for automatic U.S. citizenship. At most, there were only 2 years elapsed since his mother turned 16 at the time of Barack Obama’s birth when she was 18 in Hawaii. His mother would have needed to have been 16+5= 21 years old, at the time of Barack Obama’s birth for him to have been a natural-born citizen.

Is Barack Obama a natural-born citizen of the U.S.?

[chiver78]

May 22, 2019 11:01:44 GMT -5 Tennesseer said:

This is the problem.  From the link in the opening post:  

"Such a designation comes with extra requirements for transmitting citizenship, including showing that a biological parent is an American citizen who has spent at least five years in the United States."

The biological father is the former Brit now U.S. citizen and he may have not lived in the U.S. as an American citizen for at least five years.  The article does not mention when he became a U.S. citizen.

This is the same argument some people made in that President Obama was not a natural-born American citizen:

“If only one parent was a U.S. citizen at the time of your birth, that parent must have resided in the United States for at least ten years, at least five of which had to be after the age of 16.” Barack Obama’s father was not a U.S. citizen and Obama’s mother was only 18 when Obama was born, which means though she had been a U.S. citizen for 10 years, (or citizen perhaps because of Hawaii being a territory) the mother fails the test for being so for at least 5 years **prior to** Barack Obama’s birth, but *after* age 16. It doesn’t matter *after* . In essence, she was not old enough to qualify her son for automatic U.S. citizenship. At most, there were only 2 years elapsed since his mother turned 16 at the time of Barack Obama’s birth when she was 18 in Hawaii. His mother would have needed to have been 16+5= 21 years old, at the time of Barack Obama’s birth for him to have been a natural-born citizen.

Is Barack Obama a natural-born citizen of the U.S.?

but the citizenship in question is the biological father here, I am guessing. was he granted citizenship at birth, born abroad based on his mother's citizenship? 

ETA: I'm referring to the couple in the OP, not the former President. 

[andi9899]

Doesn't the fact that he was born in the US state of Hawaii make him a citizen because he was born on US soil?

[NastyWoman]

May 22, 2019 8:00:36 GMT -5 oped said:

This is what the state department sees as a priority? 

It might explain why other functions have such a backlog. Like the person I know (not me) who recently went to extend his green card. After going in for his appointment he was told that it would be up to one year before he would receive his new card. They put a sticker on his old card to keep it valid.

ONE YEAR!!! To print something out they already have and (this IS from an email I personally received last year) it includes up to 4 weeks of "quality control" after the card was produced

[raeoflyte]

Adoption costs a ton and they'd have to jump through a lot of hoops.  Who would they be adopting from and does that open up rights to the surrogate she wouldn't otherwise have?  

I have a coworker who has been a surrogate a couple times.  Her last couple was from Brazil and she never mentioned any issues with what they'd have to do for citizenship for the baby.  I obviously don't know all the details and if the parents had any genetic ties to the baby, but it's definitely a thing now that we need to have a relatively simple way to handle.  

[Tennesseer]

May 22, 2019 11:50:23 GMT -5 chiver78 said:

May 22, 2019 11:01:44 GMT -5 Tennesseer said:

This is the problem.  From the link in the opening post:  

"Such a designation comes with extra requirements for transmitting citizenship, including showing that a biological parent is an American citizen who has spent at least five years in the United States."

The biological father is the former Brit now U.S. citizen and he may have not lived in the U.S. as an American citizen for at least five years.  The article does not mention when he became a U.S. citizen.

This is the same argument some people made in that President Obama was not a natural-born American citizen:

Is Barack Obama a natural-born citizen of the U.S.?

but the citizenship in question is the biological father here, I am guessing. was he granted citizenship at birth, born abroad based on his mother's citizenship? 

ETA: I'm referring to the couple in the OP, not the former President. 

Okay. I got a bit confused here. Went back and reread the article. Yes the biological father of the girl is a U.S. citizen. He is the son of a U.S. citizen. He was born in Great Britain and lived most of his life in Great Britain. The article states the two men met in 2014 and married in 2015. The biological daughter according to the article is 11 months old which means she was born in 2018, four years after the two men first met. No where though does it mention in which country they met and was the biological father already living in the U.S. at the time they met.

The law states a biological parent must have lived in the U.S. for at least 5 years as a U.S. citizen for a child of the biological parent to be considered a natural-born citizen. It must be assumed from reading the article the biological father did not start living in the U.S. until some time after the two men met in 2014 according to the U.S. State department. Seeing the daughter was born before the father permanently lived in the U.S. for at least five years, the law states she is not a natural-born citizen.

As a side note, here is the two men's 2015 marriage announcement from the New York Times social (?) section:

Jonathan Gregg, Derek Mize

[justme]

While theoretically the problem would occur if the non-biological father in this case was a non-biological mother. But there's a huge part of me that says this has likely happened (and maybe even where neither parent was biologically link to the child they had via surrogate!) but no one did anything about it because they were a het married couple. 

I don't think it's the central idea to this issue, but I wonder if the fact that many states still only allow one father and one mother on a birth certificate is denying not only parental rights but the ability to grant citizenship to their children?

[djAdvocate]

May 22, 2019 11:50:23 GMT -5 chiver78 said:

May 22, 2019 11:01:44 GMT -5 Tennesseer said:

This is the problem.  From the link in the opening post:  

"Such a designation comes with extra requirements for transmitting citizenship, including showing that a biological parent is an American citizen who has spent at least five years in the United States."

The biological father is the former Brit now U.S. citizen and he may have not lived in the U.S. as an American citizen for at least five years.  The article does not mention when he became a U.S. citizen.

This is the same argument some people made in that President Obama was not a natural-born American citizen:

Is Barack Obama a natural-born citizen of the U.S.?

but the citizenship in question is the biological father here, I am guessing. was he granted citizenship at birth, born abroad based on his mother's citizenship? 

ETA: I'm referring to the couple in the OP, not the former President. 

this is why the whole argument was stupid.

it actually doesn't matter where Obama was born.

he could have been born on Mars and he would still be a US citizen, given his parentage.