State Department Denies Citizenship to In Vitro Children of American Living Abroad

April 19, 2012

Laboratory deskEllie Lavi, a Chicago native living in Tel Aviv, Israel, has reportedly given up trying to get United States citizenship for her twin daughters. Lavi conceived the twins through in-vitro fertilization, using donated sperm and eggs at a clinic in Tel Aviv. She carried the twins to term after the clinic implanted the embryo, but in the eyes of the United States Department of State, she is not the twins' "mother." The twins are now two-and-a-half years old. She applied for citizenship at the U.S. Embassy in Israel as the U.S. citizen mother of children born abroad, but the State Department rejected her. The stated reason for the denial is that she cannot prove that either "parent" is a U.S. citizen. The technology of childbirth, Lavi says, has outpaced American law when it comes to immigration and nationality.

Laws governing the acquisition of U.S. citizenship by children born abroad are complex. Many requirements depend on whether the child was born to two U.S. citizens, or to one U.S. citizen and an "alien." The law also draws a distinction between children born to married parents and those born "out of wedlock." For children born "out of wedlock" with only one U.S. citizen parent, the law places different requirements on mothers and fathers. Most of the requirements relate to the length of time the U.S. citizen parent continuously resided in the United States before the child was born. For children born out of wedlock to a U.S. citizen mother, the mother must have lived in the U.S. continuously for at least a year. For children of U.S. citizen fathers born out of wedlock, the residence requirement for the father is five continuous years prior to the child's birth. Although they can obtain citizenship through birth, children obtaining citizenship this way are not considered "natural-born" citizenship.

Citizenship for children born on United States territory is far simpler. With a few exceptions for children born to diplomats, any child born on U.S. soil is a natural-born citizen. This even includes children born over U.S. airspace or within twelve nautical miles of U.S. coastlines.

Lavi has criticized the State Department's decision on the grounds that technology has rendered the law obsolete. Even though she carried the twins for nine months, the law does not view them as having a biological connection to her because she did not contribute the original genetic material. Therefore, the children have no biological link to the United States and no automatic basis for citizenship. Lavi could still get them citizenship if she moved back to the U.S. and lived there with the girls for at least six months, but for now she says she must stay in Israel.

The New York immigration lawyers at Samuel C. Berger, P.C. help immigrants seeking visas to come to, or remain in, the United States. To schedule a consultation with one of our skilled attorneys today, contact us online or at (212) 380-8117.

More Blog Posts:

Study Finds that Citizenship Test May Not Be Reliable, New York & New Jersey Immigration Lawyer Blog, March 15, 2012

Schools Would Have to Verify Students' Immigration Status Under Proposed State Law, New York & New Jersey Immigration Lawyer Blog, February 1, 2012

Controversial Arizona Immigration Law is Supreme Court-Bound, New York & New Jersey Immigration Lawyer Blog, December 20, 2011

Photo credit: 'Laboratory desk' By Goldmund100 (Own work) [GFDL or CC-BY-SA-3.0-2.5-2.0-1.0], via Wikimedia Commons