Niether. It's federal law. Specifically, beginning with the Immigration and Nationality Act of 1952 and carrying forward through several revisions snice then. It's what I do for a living.

ANY law can be challanged in a court. ANY law. The issue is not whether it might be challenged, or should be challenged, or could be decided by a District Court, or an appelate Court...... the issue is, what is the current law.

First off, reliance on Wikpedia can be deceiving. I won;t say any more than that, EXCEPT to say that everyone points to it like its "facts" are written in stone.

The law recognizes a foreign born child, if at least one parent is a U.S. citizen, DEPENDANT on certain residency requirements. If both parents are U.S. citizens, legally married in any jurisdiction, then it doesn;t matter where the child was born.

However, a child born to a surrogate mother is not a U.S. citizen. As in the previous post, we are talking current law, NOT whether a court might decide something someday. If we look at it that way, then ANY crime or ANY legal matter is irrelevant if we say "Well, a court might decide differently". Of course they might. We see, more and more everyday, numerous examples of the Courts MAKING law or, UN-making laws that were written. That is not their function and to postulate that they might is akin to giving them the right to (continue) to do so.

Ok.... so let's postulate ((( )))

John and Jane Doh! are Americans. Both are legally married in Kentucky. They go to India where an Indian woman carries Jane's baby to term. WHen the baby is born, it is born to Tashira (Indian woman), NOT to John and Jane Doh!

So, John and Jane want to bring this baby of "theirs" back to America. They find that the baby is not a U.S. citizen. They file a suit in Federal court. Since the issue is unusual, the Court may decide that, under certain conditions, a baby born in this manner is a U.S. citizen. Or they may decide against. The point is, up until they do decide one way or another, the baby is a foreigner...an alien...a person not a U.S. citizen.

Now, maybe they adoted this child that Tashira gave birth to? Ok, with certain requirements, i.e. certain conditions being met, the child may be a U.S. citizen under current law. But that's assuming they adopted the child legally under Indian's law.

In the end....under current law....the baby's an Indian at best.

Absolutely, but as of now, the NIA, does not discuss the surrogacy situation we are discussing. Ultimately it will depend on how they interpret the law. Is a child whom BOTH it's US father and US mother actually conceived the child, it's parents, or is the incubator?

Do parents that do this surrogacy inside the US, then have to "adopt" the child from the surrogate?

As I said earlier, it "may" raise an interesting question.

Can you point to where in the Immigration & Naturalization Act it address' surrogacy births?

Yes, this is what I'm saying. EVERYTHING depends on how someone interprets the law. BUT, the law is current....the child would not be a U.S. citizen (UNTIL being decided in a court).



That's irrelevant to whether the child is a U.S> citizen or not. If foregin born, it is relevant.

No! We don;t need to. See? The child is born foreign. There is no need to point to any surrogacy....it isn;t addressed and doesn;t need it.

Forget this surrogacy issue for a moment. Think foreign born. Now, the onus is on the parent. The child is not subject to jus soli.... place of birth (in this instance, America or foreign). It's very simple, but we're complicating the matter by assuming what a court "might" do.

The law stands without court interpretation. In order to move the court to interpret, the PARENTS must initiate the action. See? The Government already has. See above posts for foreign born children.

Sec. 1409. Children born out of wedlock
TITLE 8, CHAPTER 12, SUBCHAPTER III, Part I, Sec. 1409.
STATUTE

(a) The provisions of paragraphs (c), (d), (e), and (g) of section 1401 of this title, and of paragraph (2) of section 1408 of this title, shall apply as of the date of birth to a person born out of wedlock if -

(1) a blood relationship between the person and the father is established by clear and convincing evidence,
(2) the father had the nationality of the United States at the time of the person's birth,

Would this not make the child a US citizen by birth???

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.

Izzy, in October I'll have 24 years in this "business". I didn;t always think this way, but I do now. I really think the law should be changed away from jus soli.... changed to mean that birth in the U.S. doesn;t automatically confer U.S. citizenship. If the parents are here legally at the time of birth, jus soli should apply. If illegal at the time of birth, it shouldn;t. I heard something on the radio the other night that suggests the law might already, in effect, mean that, but the we "Interpreted" it wrong years ago and set a precedent.

Cubans just need to touch the US soil and they can stay with or without a child thanks to the ol' USA Government.

Dave