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Denying IVF Babies American Citizenship Not Uncommon: Expert
Yesterday, a surprising news report was published about a U.S. woman living in Israel whose children born via in vitro fertilization (IVF) were denied U.S citizenship. When the woman, Chicago native Ellie Lavi, went to the U.S. Embassy in Tel Aviv to apply for citizenship for her twins, she was asked whether she had gotten pregnant at a fertility clinic and was told that her children were not eligible for citizenship unless she could prove that the egg donor or sperm donor was an American citizen.
Marna Gatlin, the founder of Parents Via Egg Donation (PVED) and a regular blogger for FertilityAuthority, wasn't surprised by the report and says this situation is not uncommon for parents she works with who are living in Israel. "These women are all American citizens who are choosing to live in Israel, working over there," she says. "Some of them may have a partner, a lot of them are single mothers by choice. So they've done donor egg, donor sperm. The majority of them have anonymous egg donors and sperm donors. The embassy will actually ask them if they've used an egg donor, or they will say: 'Are these your children?' And they'll say, 'Yes, these are my children.' And they'll say, 'Did you use an egg donor to have these kids?' And they'll be honest and they'll say, 'Well, OK, yes.' And they'll say, "We cannot register your child because we cannot prove this child is really an American citizen because we don't know if the egg donor and the sperm donor were American."
Gatlin says some of the woman will tell them they had fertility treatments in the United States, and the IVF cycle was done in the United States with an anonymous American sperm donor or egg donor. "And they will be told that in order for those children to be registered as U.S. citizens, they would need to track down their sperm donor or egg donor and have those individuals apply for citizenship for their children to become American citizens, which is absolutely ludicrous," Gatlin says. " Or they will have to adopt their children."
Interestingly, if an American adopts a child overseas, the child is eligible for citizenship. And if you immigrate to America and your baby is born in there, that baby is an American citizen. But if you are an American who uses donor eggs and donor sperm, the child is not American unless an American is one of the donors. The State Department says that a child born outside the United States to an American cannot receive citizenship until a biological link with at least one parent is established.
"The problem is that it's an outdated law that has not caught up with ART (Advanced Reproductive Technology)," Gatlin says. She also points out that in third party reproduction, the woman who carries the child is considered the "biological parent." "We are considered the biological parents because embryos have been placed back in our uterus, we've grown that baby, and everything we eat, drink, breathe has a direct correlation. While we can’t control which genes are passed on to our children, we do have influence over which genes are expressed — it’s called epigenetics. Genetically, they are not our offspring, but biologically they are. So that's the word. It's semantics. It's the interpretation of the word."
Gatlin says that PVED has two pieces of advice for women living overseas who may be in this situation. The first and most important? "Get yourself some legal counsel," she says.
And the second? "If you're US citizen, pregnant and living abroad, come back to the United States and give birth," she says. "And we're telling them that unofficially, because we're not a legal entity, but we're advocating for our intended mothers."
According to the report in USA Today, The U.S. State Department says it followed the 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."
Like another case before the U.S. Supreme Court dealing with IVF and posthumous conception, it may be time for an assessment of many laws so that they will catch up with reproductive technology.