In vitro babies denied US Citizenship

[catknit 144]

JERUSALEM (USA TODAY) — Chicago native Ellie Lavi could not have been happier when she gave birth to beautiful twin girls overseas.

She found that the U.S. State Department did not share in her joy when she went to the U.S. Embassy in Tel Aviv to apply for citizenship for her children.

An embassy staffer wanted to know whether Lavi got pregnant at a fertility clinic. She said yes and was told that her children were not eligible for citizenship unless she could prove that the egg or sperm used to create the embryo was from an American citizen.

"I was humiliated and horrified," Lavi said. "We're talking about the children I gave birth to. Of course they're my children."

The incident points out what critics say is a glaring inequity in U.S. citizenship regulations. A child adopted overseas by a U.S. citizen is eligible to become an American, and a baby born in the USA is American even if the parents are not.

But a child born to a U.S. citizen overseas through the increasingly common practice of in vitro fertilization with embryos from donor eggs and sperm is not American, unless an American is one of the donors. And that can be hard to prove since clinics may not reveal such things about their donors due to confidentiality agreements, immigration law experts say.

"The problem is that the law hasn't kept up with the advances in reproductive technology," said Melissa Brisman, a lawyer in New Jersey who specializes in fertility issues.

The U.S. State Department says a child born outside the USA to an American cannot receive citizenship until a biological link with at least one parent is established. That link does not exist if an infertile woman uses donor eggs at a clinic to conceive.

No such biological link exists for parents who adopt children overseas either, but U.S. law exempts adopted children from the regulation.

"Although the regulations are designed to prevent the abuse of American citizenship laws" through fraudulent claims of parentage, Brisman said, "they're also hurting infertile Americans who simply want to pass on their citizenship to their kids."

Lavi said she was in a crowded hall with her kids when the embassy staffer asked her over a speaker from behind a glass partition, "Are these children yours?"

Lavi, a single mom in her 40s, said she felt the question was an invasion of privacy and she was not clear about the law regarding such births.

Marla Gatlin, founder of Parents Via Egg Donation in Portland, Ore., says parents have been punished for not knowing the rules and telling the truth to the embassy.

Gatlin says pregnant Americans living overseas "often decide to either fly back to the U.S. to give birth, or they lie" to consular officials about how they conceived. Those who lied "aren't going to talk about it now, in fear of having their children's citizenship revoked," she says.

The U.S. State Department says it is merely following proper interpretation of the law, but it is studying whether it can interpret the Immigration and Nationality Act to allow U.S. citizen parents "to transmit American citizenship to their children born abroad through artificial reproductive technology in a broader range of circumstances."

Michele Koven Wolgel, an Israel-based lawyer who specializes in U.S. immigration law, says many embassy officials ask only older women, especially single moms, about the method of birth.

"That's called profiling," she says.

Most of the 200,000 U.S. citizens in Israel have dual citizenship, and fertility treatments are common because they are free. Wolgel says the State Department is going too far in its interpretation of the U.S. Immigration and Nationality Act.

In vitro babies

[catknit 144]

Methinks someone could open a USC sperm bank in many nations, make a ton of money, and avoid the visa issues needed for the baby-birthing tourism business....

[UK_Fan 192]

that's bureaucracy for ya.. though how can an adopted child become a citizen, but an IVF baby can't... makes no sense.

[Laure&Colin 558]

Lavi, a single mom in her 40s, said she felt the question was an invasion of privacy and she was not clear about the law regarding such births.

Yes, well, ask all the USCs who petition for their foreign spouse to immigrate and were questionned about their sex life... ain't that invasion of privacy?? Privacy doesn't exist when it comes to immigration and citizenship I'm afraid, and this problem is not limited to fertility issues.

Michele Koven Wolgel, an Israel-based lawyer who specializes in U.S. immigration law, says many embassy officials ask only older women, especially single moms, about the method of birth.

"That's called profiling," she says.

Wow, a lawyer specialized in US immigration law just discovered that embassies do profiling when dealing with immigration/citizenship applications?? :rofl:

I'm not particularly shocked, the COs do what they're known for: they go by the law which says that parents can only pass citizenship to biological children, and they will act without any consideration to the applicant's feelings in order to know the truth. What's new here?

[Peter_Pan 661]

Are the children biologically hers? Or are they both of another genetic making?

[catknit 144]

From how I read it - the kids are from both an egg donor and a sperm donor. So, from a genetic standpoint, the kids are not hers.

However, there are no additional hoops to jump through for a US-based USC establishing parentage for the same situation.

If you go through IVF here with donated eggs and sperm (separately) OR by getting an embryo donated from a family that had - for lack of a better word - leftovers, to the best of my knowledge there are no additional legal hoops to proclaim the resulting child[ren]of the infertile/carrying parent their legal children.

What USCIS/DOS is doing is legally correct - the resulting children in this case are neither "of blood" or of land for a USC claim. But, they are completely and legally the children of a USC otherwise. A family/immigration attorney would need to chime in but I don't think there is any way to legally adopt children who are already yours in the scope of every other part of law.

What I find interesting is the fact the IVF or the old school "test tube baby" is now older technology - 30+ years I think. That it hasn't made an impact in immigration law is interesting to me.

Also, as I said in my first post, I am beyond shocked no-one has figured out a way to profit off of this - fertility issues are pretty common, estimated at 1:10 here in the US. I'm not sure a married couple would forego a kid with both parents' DNA contributing to the mix just for a USC claim but for a family with fertility issues knowing they are going to need one donor or another and knowing you can add into the mix USC - there are some developing nations with growing economies that have people who have means to pay for something like this [bRIC countries come to mind]. Why not get your long awaited kid plus Dual Citizenship?

[catknit 144]

My syntax stinks - I meant "Why not get your long awaiting kid plus dual citizenship for the baby....

[Darnell 8,478]

Donor eggs? what?

if Ms. Levi got pregnant with fertilized donor eggs, biologically the children are not hers - none of her genetic material exists in the children.

In hindsight, she could have birthed the kids in the USA, remove lots of hassle. I'll bet she even has a support group back in USA to put her up for the duration of the pregnancy.

Oh Well. Live and Learn, yes?

[catknit 144]

I think what is probably most maddening is there is no legal fix for it - there is no way to legally remedy this situation as she can't adopt kids who are already hers...

Hence my new business plan - providing USC eggs and sperm to expats and infertile couples looking to expand their childrens' citizenship prospects! Ok, maybe not, but you'd think someone would be on top of that....

[Harpa Timsah 13,258]

I think what is probably most maddening is there is no legal fix for it - there is no way to legally remedy this situation as she can't adopt kids who are already hers...

Hence my new business plan - providing USC eggs and sperm to expats and infertile couples looking to expand their childrens' citizenship prospects! Ok, maybe not, but you'd think someone would be on top of that....

Can't she file an I-130 for them, go to the US, and once they are in the US in the possession of a immigrant visa, they will become USCs based on being the minor children of a USC. I mean, that is certainly not ideal, but it is a legal fix to this problem, no?

[catknit 144]

I'm not sure how she can - the embassy has ruled the kids not hers legally for the purpose of immigration.

She would need to overcome that through some legal means - ie adoption I would think...

But - classic catch-22 - she can't adopt her own kids????

I think that's where the true mess in this whole thing comes from....

[Harpa Timsah 13,258]

I understand she can't adopt her own kids, but they are her kids for all purposes, except for passing on citizenship "through blood." I still think she can petition them immediate relatives (her kids) and then claim citizenship once they are on US soil (which is the law). Like I said, not ideal, but workable.

[catknit 144]

That would be a wonderful work-around if it worked. My concern would be that the embassy has already "ruled" that the kids aren't hers.

I'd be curious if USCIS proclaiming them "hers" through an I-130 would hold enough weight - or any weight???

Especially if there is case history for a specific child or family that shows that the kids are via donors???

Hypothetically, the birth certificate(s) should cover it, I completely agree.

But, the catch I see is that the cat is out of the bag at the embassy that they aren't blood relations, even though they are her children without the benefit of a legal document [like adoption papers] establishing the relationship.

It's like there are 2 options, blood or legal proclamation that the kids were deemed hers through legal channels [marriage or adoption]. I think what the embassy is saying is the existence and subsequent use of a birth certificate can only be applied when they are blood relations. [Which I personally think is bs, but this is about legal mumbo-jumbo and procedure - which I now find fascinating since a lot of it is a hot mess].

At the embassy level, they already decided the birth certificate alone did not establish a parental relationship when DNA doesn't match.

I hope I'm wrong, but that's how I read the article.

Otherwise, the person highlighted in the article needs to do a bit of research and wait out a traditional I130 petition....

[Darnell 8,478]

Can't she file an I-130 for them, go to the US, and once they are in the US in the possession of a immigrant visa, they will become USCs based on being the minor children of a USC. I mean, that is certainly not ideal, but it is a legal fix to this problem, no?

That makes sense to me.. I wonder what an IV unit will say? [in-vitro, no la - immigrant visa, instead!]