Important Information for U.S. Citizens Considering the Use of Assisted Reproductive Technology (ART) Abroad

Per the State Department

  • Transmission of U.S. citizenship at birth to a child born abroad is governed by Immigration and Nationality Act (INA) Sections 301 and/or 309. The Department of State interprets the INA to require a U.S. citizen parent to have a biological connection to a child in order to transmit U.S. citizenship to the child at birth. In other words, in order to transmit U.S. citizenship to a child conceived through Assisted Reproductive Technology (ART), a U.S. citizen father must be the genetic parent or a U.S. citizen mother must be either the genetic or the gestational and legal mother of the child at the time and place of the child’s birth.  (A gestational mother is the woman who carries and gives birth to the child.)
  • The determination of citizenship of children born abroad to a U.S. citizen parent is the responsibility of the U.S. Department of State and is governed by U.S. law. Therefore, even if local law recognizes a surrogacy agreement and finds that U.S. parents are the legal parents of a child conceived through ART, if the U.S. citizen parents do not have a biological connection to the child, the child will not be a U.S. citizen at birth.
  • The Department determines the citizenship of each child who applies for documentation as a U.S. citizen individually, on a case by case basis, after carefully considering the specific facts surrounding the child’s birth and his or her parents’ situation. We cannot “pre-adjudicate” a citizenship determination. In many cases involving ART, the best evidence available to parents to show their biological connection to a child born to a foreign surrogate is DNA testing. These tests cannot be done until after the child is born.
  • Children who are born abroad to foreign surrogates and who are not biologically related to a U.S. citizen parent can have trouble entering the United States. If the child is not biologically related to a U.S. citizen parent, the child will not acquire U.S. citizenship automatically at birth. However, in some countries, the child will not acquire the citizenship of the country where he or she is born because the surrogate mother is not considered the parent of the child. In such a case, it may be impossible for that child to get a passport from the United States or the location of birth, and/or from third countries depending upon the circumstances of the case. It may be helpful for U.S. parents considering a foreign surrogacy arrangement to consult with an immigration attorney first.
  • The Department is aware of cases where  foreign fertility clinics have substituted alternate donor sperm and eggs for the U.S. parents’ genetic material, either purposefully when the planned genetic material turned out not to be viable or through accidental laboratory errors. The intended parents learned of these undisclosed switches only when the parents obtained DNA tests after the child’s birth, as part of the process of documenting the child’s citizenship for the purposes of obtaining a U.S. passport. Such situations can have the unfortunate consequence of leaving a child stateless or otherwise unable to leave the country of birth.
  • A U.S. citizen parent who has a biological child overseas, including via a foreign surrogate mother, may apply for a Consular Report of Birth Abroad of an American Citizen (CRBA) and a U.S. passport for the child at the U.S. Embassy or Consulate in the country where the child was born.
  • A CRBA certifies that a child born abroad is a U.S. citizen.  A CRBA does not determine the identity of the child’s legal parents. Therefore, in general, the name/s listed on the CRBA is/are the U.S. citizen parent/s with a biological connection to the child.  A second parent may be listed on the CRBA if the second parent demonstrates a legal parental relationship to the child under local law; the CRBA does not, however, serve as a record of that individual’s status.
  • The U.S. passport also documents the citizenship status of the bearer and, during the period of its validity, is proof of U.S. citizenship. If the Embassy or Consulate determines that the child is a U.S. citizen, he or she will need a U.S. passport to enter the United States. As part of the application process, the parents must provide evidence to the local U.S. Embassy or Consulate of the child’s identity, birth, and citizenship. In an ART case, the parents may be requested to provide medical and documentary evidence of the child’s conception and birth and such other evidence as would demonstrate the biological connection between parent and child, along with evidence of the parents’ identity, citizenship,  requisite physical presence in the United States, and legal status as the child’s parent under local law. Parents may also arrange for DNA tests of the child, using approved labs and procedures as described in our Information Sheet for Parents on U.S. Citizenship and DNA Testing. If the child is biologically related to a US citizen father, but not to the father’s spouse, the case would be treated as a birth out of wedlock to a U.S. citizen father, pursuant to INA 309(a), and the father would have to meet the additional requirements of that section.  If the child is biologically related to a U.S. citizen mother, but not her spouse, the case would be treated as a birth out of wedlock to a U.S. citizen mother, and would have to meet the requirements of INA 309(c).  If the child is the biological child of both parents, and the biological parents are married to one another, INA 301 requirements would apply, including a requirement that at least one of the US citizen parents had resided in the United States prior to the child’s birth.
  • The regulations governing issuance of a U.S. passport to a minor under 16 are found in 22 Code of Federal Regulations (CFR) Section 51.28. Essentially, the legal parents of the child must both consent to the passport application unless one of the exceptions enumerated under 22 CFR 51.28 exists.  If, under local law, a surrogate mother is the legal mother of a child born through ART, then the surrogate mother would need to consent to passport issuance for the minor child or one of the exceptions to the two-parent consent rule in 22 CFR 51.28 would have to be met.  The burden of demonstrating the citizenship and identities of the minor’s legal parents rests with the passport applicant under 22 CFR 51.23 and 51.40.

The Unacceptable Costs of Aging Out of Foster Care

We have all heard the adage that justice delayed is justice denied. There are few places this is truer than with the children in our child welfare system. And without placing blame on any one person or any one entity, it is crystal clear that the public sector and the quasi public sector over many decades now are ill-equipped for the task of creating permanency for our children.  The solution lies with advocating for use of the private sector—attorneys and agencies alike that specialize in the field of child welfare and adoption. The plain fact is that we need to do more to find forever families for children in foster care. Empowering a birth mother or birth father to chose adoption after their child has been placed in the foster care system has been proven to increase adoptions and dramatically lower the financial burdens of our child welfare system. For a more detailed synopsis on this topic and the unacceptable human, societal and economic costs associated with aging out of foster care, please read

Statement by US Department of State Regarding Children Affected by Earthquake in Nepal

The Department of State is receiving inquiries from U.S. citizens regarding the plight of children in Nepal in the aftermath of the April 26, 2015, earthquake.

We understand that U.S. citizens, moved by images of children in need, want to open their homes and adopt Nepali children affected by the earthquake. This devastating event has left many in need of assistance.  Children, especially those separated from their parents or guardians, are particularly vulnerable in any disaster. The Department shares concern for these children and their needs are of paramount concern to us. 

Before a family can adopt a child from another country, however, the governments of both the United States and the child’s country of origin must first determine that the child is indeed eligible for intercountry adoption. During times of crisis, families may find it difficult to gather documents necessary to fulfill the legal requirements for adoption of both the United States and the child’s country of origin. This is especially true when civil authority breaks down or temporarily ceases to function. 

It is not uncommon in an emergency or unsettled situation for children to be temporarily separated from their parents or other family members who may be looking for them. Moreover, parents may send their children out of the area for their safety. Efforts to reunite such children with relatives or extended family should be given priority.

There are ways in which U.S. citizens can help the children of Nepal now.  For example, individuals who wish to assist can make a financial contribution to a reputable relief or humanitarian organization working in Nepal. For more information on how you can help, please see details at the bottom of our page. 

For specific questions about the adoption process in Nepal, please consult our country specific page at or e-mail

More Information on how you can help

The Department of State alerts U.S. citizens of the risks of travel to Nepal following the April 25 earthquake. For more information, view our Nepal Earthquake page.