On May 18, 2021, the U.S. Department of State announced a change in its interpretation and application of 8 USC 1401 regarding granting citizenship to children born abroad via in vitro fertilization (IVF) or surrogacy. Under the new policy:
Children born abroad to parents, at least one of whom is a U.S. citizen and who are married to each other at the time of the birth, will be U.S. citizens from birth if they have a genetic or gestational tie to at least one of their parents and meet the INA’s other requirements.
The previous policy required that children born abroad have a genetic or gestational relationship to a U.S. citizen parent. The old policy considered children born outside the United States to a surrogate to be born out of wedlock under 8 USC 1409, even when the parents were married.
This change in policy comes after recent federal court rulings that required the State Department to recognize the citizenship of children born via surrogacy to two married couples in Canada.