Comparative Federalism, Fam-Migration and Citizenship by Descent
Scott Titshaw
This article focuses on the issue of jus sanguinis citizenship transmission to the children of citizens at birth. It compares the laws of the United States with those of other federal States that legally define parent-child status differently for citizenship and other purposes, concluding that jus sanguinis citizenship determination should coincide with legal determinations of parentage.
I. Introduction
The people of the world are becoming more mobile, migrating temporarily or permanently on a greater scale than ever before. This vast human migration, pared with technological improvements in communication and transportation, leads to increasingly complex questions of individual identity in relation to nation-states and to other groups. The recent negative reaction of many Europeans to new waves of immigration and the nativist anti-globalism evident in this year’s US election indicate the continuing importance of how nations define themselves through immigration and citizenship laws.
A number of countries have recently amended their statutes to define more strictly their requirements for naturalizing new citizens from elsewhere.[1] Yet naturalization is not the most important method of citizenship acquisition. The vast majority of citizens in every country simply acquire citizenship at birth (i) based on jus sanguinis rules transmitting citizenship from one or more citizen parents, (ii) based on jus soli rules transmitting citizenship upon birth in a state’s territory, (iii) or based on some combination of rules (i) and (ii).
There is much to discuss with regard to the various methods of citizenship acquisition. For instance, US nativists recently have been arguing for a radically limited new understanding of the Fourteenth Amendment’s guarantee of jus soli citizenship, excluding children born on US territory to undocumented foreign nationals. This paper focuses, however, on the automatic acquisition of jus sanguinis citizenship. In particular, it examines the unique problems international ART and surrogacy raise in federal systems that determine parentage differently for citizenship and other purposes.
Citizenship by descent sits at the intersection of family law and nationality law. This convergence may be inconsequential in the many nations that regulate familial status consistently, at the same level of government for both purposes. But there are serious consequences to the fact that the United States and some other federal nations generally govern parental status, benefits and responsibilities at the state or provincial level while defining parentage independently at the federal level for purposes of citizenship. This divergence results in untenable situations for both parents and children. For example, US state and Canadian provincial law might impose duties of custody and care on parents while relevant federal statutes render it difficult or impossible for the family to live together in that state or province.
Meanwhile, modern family law has grown more complex over the last few decades, increasing the number of families touched by these federal inconsistencies. Some, but not all, jurisdictions now recognize de facto partners, registered partners and same-sex spouses, who are parenting children, including adopted children and children conceived through assisted reproductive technology (ART).[2] This domestic inter-jurisdictional complexity combines with inevitable international jurisdictional distinctions to exponentially increase the difficulties for applying family-based jus sangiunis rules in unified federal schemes of citizenship acquisition. Thus, it is understandable that federal authorities would want to adopt oversimplified, easily administrable genetic tests for citizenship acquisition. That is precisely what has happened in the laws of two of the three countries explored below. Yet, this is not acceptable. It comes at the expense of too many stateless and parentless children, and two many desperate and troubled parents.
Part II examines the nature of jus sanguinis rules, the rationales for and against their recognition. Part III Provides a very brief overview of problems occurring in the context of international ART and surrogacy cases. Part IV describes the current state of family and nationality law in the US, Canada, and Australia – three federal states that determine familial status independently for federal citizenship purposes. Finally, Part V proposes reforms that could ameliorate the problems identified in Parts III and IV. Although not a primary goal, this discussion also will necessarily touch on many of the same big theoretical questions underlying consideration of naturalization requirements, jus soli citizenship, and other aspects of the meaning of citizenship from the perspective of both citizens and the State.
II. Jus Sanguinis Citizenship Transmission
Although several important nations like the United States, Brazil, and Canada generally recognize unconditional jus soli citizenship for anyone born within their territories, most countries do not. Instead, they require some form of jus sanguinis (i.e., blood right) link with citizen parents at the time of birth in order to transmit citizenship, regardless of where a child is born. Jus soli countries like the US and Canada also recognize jus sanguinis citizenship as an alternative form of citizenship transmission for children born abroad.
There are a number of reasons for recognizing jus sanguinis citizenship transmission, reasons which arguably may be growing more important as people become more likely to travel and reside far from their birthplaces. From the perspective of sovereign state interests, jus sanguinis rules ensure intergenerational continuity of a state’s constituent citizenry, reinforce citizens’ unique and unambiguous loyalty to the state, and recognize special ties among people, families, cultures and religions that bind citizens together independent of legal citizenship, thereby reinforcing that legal status.[3] From a more human perspective, rules providing for transmitting citizenship from a parent to her child at birth acknowledge special family links, foster political links between children and their parents’ political community, and avoid statelessness.[4]
Scholars have criticized jus sanguinis rules as tainted by history and ethno-nationalism, inadequate to address ART and other modern life circumstances, and unnecessary to the stability of families or intergenerational political communities.[5] Some have even proposed the abolition of jus sanguinis.[6] Yet discarding this flawed but ancient regime would be misguided.
Although it is likely that children will not always remain with the citizens who were their parents at birth, most children will likely form some connection and spend significant time with their citizen parent(s). As numerous recent US examples demonstrate, state recognition of common citizenship between parents and their children make it more likely that the family can remain united.[7] These bonds and experiences are likely to lead to the transmission of some values from the citizen parent or parents, including the sorts of political and cultural values that ideally link one to a particular state and its citizens.
Whatever their rationale or merit, jus sanguinis rules are here to stay. They have persisted from ancient times to the present,[8] becoming particularly ascendant since the French Revolution.[9] Thus, it is important to determine how to make them work in the most fair, humane, and effective way possible.
III. Problems with International ART and Surrogacy
There have been numerous publicized cases of abuse and fraud in the context of international surrogacy. After a Thai surrogate gave birth to twins intended for an Australian couple, the couple took their healthy daughter back to Australia, but abandoned her twin brother in Thailand because he had downs syndrome.[10] Soon afterwards, Thai authorities alleged that a Japanese businessman was running a “baby factory” where his sperm was used to father more than sixteen surrogate babies, found in unfurnished rooms unfit for children.[11] More commonly, there have been reports of coerced and mistreated surrogates in countries like India.
Currently, sixteen jurisdictions, including Austria, France, Germany, China, and Japan, ban all forms of surrogacy.[12] Ten additional countries, including Canada, Spain, and the United Kingdom, ban commercial surrogacy.[13] In some cases this is accomplished through the use of criminal penalties including significant terms of imprisonment for various parties to surrogacy agreements.
In addition to the fraud and abuse problems described above, there are many other cases involving well meaning, sometimes desperate intended parents, who are unable to obtain legal recognition of children conceived through ART and/or delivered through international surrogacy agreements. This leaves some children parentless or stateless. It leaves others with “limping” parentage, recognized for some purposes, but not for others.
International tribunals have become involved in resolving some of the more compelling claims of parents and would-be parents. The Inter-American Court of Human Rights held that the effective prohibition of in vitro fertilization violates rights under the American Convention on Human Rights, including the right to choose whether to use ART to have one’s own biological children as an aspect of the rights of personal integrity and private and family life.[14] The European Court of Human Rights held that France could not refuse to recognize the parent-child relationship legally established in the United States between French citizens and their child because the child was born to a surrogate in the US.[15]
The Hague Conference on Private International Law (HCCH) also has been studying the problems of legal parentage, nationality and other issues arising from international surrogacy agreements for several years now.[16] Recognizing many of the problems described above, the HCCH is considering whether and how to draft a possible convention to regulate some of these issues at an international level.
IV. Cross-Border Birthright Citizenship Issues in 3 Federal States: Australia, Canada, & the US
In most countries of the world, once legal familial status is defined, that family law determination carries over for purposes of family-based immigration and citizenship by descent. But there are major exceptions in the United States, Canada and Australia, all federal States in the British common law legal tradition, which determine parentage independently for citizenship and other purposes.[17]
There are four primary factors for determining parental status at the time of a child’s birth: gestational motherhood, rebuttable or irrebuttable marriage-based presumptions, genetic parentage, and intended parentage. Lawmakers and courts in various jurisdictions diverge in the weight given to each factor when determining jus sanguinis citizenship acquisition.
In the United States, Australia, and Canada, various state or provincial laws differ widely in determining parentage at birth, ranging from the significance and rebutability of presumptions based on parental marriage to the number of possible legal parents.[18] Sometimes, legal determination of parentage varies from one purpose to another within the same state,[19] but this is generally based on particular concerns and it is not the norm.
In spite of the primary role of states in defining and regulating family relationships, the US and Canadian federal governments have stepped in to create autonomous federal definitions of parentage for purposes of birthright citizenship transmission.
The relevant US statute provides for citizenship transmission to children born abroad “of parents,” one or more of whom was a US Citizen.[20] Yet Congress failed to define what it means to be “born of [US Citizen] parents.” Enacted decades before any child was conceived through in vitro fertilization, this statute provides the Department of State (DOS) and other agencies little guidance to sort out novel new parentage issues for citizenship purposes.
The DOS has acted slowly and conservatively to clarify when US citizenship is transmitted to children conceived through ART. Until 2014, the DOS focused entirely on genetics, defining a child’s “parents” as the sources of the sperm and egg creating the child, regardless of whose womb was used or who were the child’s intended and legal parents.[21] DOS even extended this genetic essentialism to its conception of whether a child was “born in wedlock,” focusing on whether the sperm and egg that created the child came from a married couple. If not, the child was considered “born out of wedlock” and subject to the more difficult criteria in that category.[22]
Of course, this genetic essentialist policy lead to absurd results in many situations. The most compelling were probably those of women, who gave birth to children they intended to mother and who were viewed as mothers at birth under relevant family law. For example, a US citizen woman with fertility problems might use a donated egg and her non-citizen husband’s sperm to conceive a child in vitro, which she later carried to term. In analyzing the child’s citizenship upon birth abroad, the State Department would have viewed the child as “born out of wedlock” and, because it was not genetically related to the US citizen mother, citizenship would not have been transmitted.[23]
In early 2014, the State Department adjusted its analysis slightly in order to remedy the specific situation described above. Now it focuses on “biological” parentage, which comprises both genetic parents and intended and legal mothers who actually give birth to the children.[24] This means that the mother in the prior example would now transmit her US citizenship to her child.[25] Under its new interpretation, the State Department also views a child as born in wedlock if born to a married lesbian couple comprised of a genetic and a birth (gestational) mother, both of whom would be considered to have the requisite “biological relationship” to the child.[26] However, the case would be different if the married lesbian couple chose to avoid in vitro fertilization (IVF), and the foreign national mother was both the genetic and gestational mother; in that case the DOS would consider the child born “out of wedlock,” and citizenship would not be transmitted from her US citizen wife. Of course, any parents using a surrogate to carry a child to term also will continue to transmit citizenship only if the child is genetically related to the US citizen.[27] And the DOS will still apply INA §309 to children born to surrogates unless both of their genetic and legal parents are married to each other because it still considers them “born out of wedlock.”[28] This policy can result in long delays and even permanent family separation. (Imagine a citizen parent whose only hope is an international adoption of his own legal child.) In some cases, it could also result in stateless children.[29]
Unlike their US counterparts, Canadian immigration authorities still adhere to the absolute genetic essentialist approach to parentage for citizenship purposes. Citizenship and Immigration Canada’s Operational Bulletin 381 states that children conceived through ART who have “no genetic link to the Canadian parents, are not eligible for citizenship by descent.”[30] And the Canadian Federal Court of Appeal has recently upheld this rule.[31] Therefore, Canadian gestational, intended, and legal mothers who give birth abroad still do not transmit citizenship to their children.[32] Of course, children of Canadian parents born abroad as a result of artificial insemination or after using a surrogate face the same dilemmas as their US counterparts.