Well yes and no, Chris. Remember that now you are speaking of illegitimate births, independant of surrogacy, and there is more to the Act (by way of Interpretations and CFR).... what you have is raw Section 1409 INA. With this issue, there are residency requirements depending on the date of birth of the child. This has nothing to do with surrogacy. This is one U.S. citizen parent and one foreign born child.

Now, 8CFR and Interpretations both go hand-in-hand with the INA. The INA sets forth raw legalality. Interpretations are a collection of Court interpretations, Congressional intent, and Governmental interpretations. 8CFR combines, or rather, is a collaboration of the two into Code.

When you speak of illegitimacy, surrogacy doesn;t enter the equation (that I can think of). So, yes, if the parents (and sometimes the age of the child) had the required U.S. residency, prior to or after the birth of the child, as required, then the child would be a U.S. citizen (derivative).

Again....let me say just once more again, the law is established. A foregin born child and parents are subject to certain restrictions and requirements. The law is clear on this. Just once more, let me say, the "pondering" of whether a surrogate child COULD BE DETERMINED IN COURT to be a U.S. citizen is irrelevant. Again...irrelevant. Unless there is already a decided case out there, when the foreign born child enters the U.S., the burden of proof of citizenship is on the child (parents).

It doesn;t matter if we like this or detest it....if we want it kept this way or want it changed... if we want ice cream or potato chips..... the law stands UNTIL it's challenged and, affirmed or changed.

Immigration law is the most complex law on the books in the U.S. (in the opinion of Congress and those charged with prosecuting it). We're not going to understand it in this thread. Even in my daily work, there are complex issues that arise that we don;t have to deal with in criminal law. However, the basis of the law and Interpretations (note capital "I") stand on their own, despite what some Court may do "in the future".

On edit: Ok. Here's a thought. Say in India for example, they don;t really care who might actually deliver a child. Assume that they care only that the child is blood related to two people, and these two people are U.S. citizens. They issue a birth certificate to John and Jane, showing their baby Joey, was born on whatever date in India. Well now, what you have there is 2 U.S. citizen parents and a foreign born U.S. citizen child. Pretty simple. But the issuanc eof a birth certificate and the established "parentage" of the child is dependant on the host country, it doesn;t really have much to do with us in the U.S.