Child born of surrogate - father is USC but child denied citizenship

[fip & jim 452]

3 minutes ago, Bill & Katya said:

 Sounds like they simply want someone to bend the rules/laws.  I am not sure what you would call that.

"Sounds like" is not evidence. There is a discrepancy between family law and immigration law, that the article is highlighting, which affects this family.

[carmel34 3,532]

Interesting case, but like anything related to US immigration law, you have to know the all details and follow the rules before you make big decisions, like getting married or having a baby.  Just like all of us, do research on all of the ins and outs of the very old and complex immigration laws and know the repercussions of your decisions before you make them.  If this couple (or the other couples mentioned in the NYT article) had done their homework before having the surrogate birth in the UK, they would have made arrangements to make sure the birth occurred in the US, or the US-born father should have been the sperm donor.  We see this here a lot on VJ--people complaining about immigration laws after making a decision, when they could have prevented the problem in the first place by knowing the laws before it was created.

Edited May 23, 2019 by carmel34

[JFH 12,189]

19 minutes ago, carmel34 said:

Interesting case, but like anything related to US immigration law, you have to know the all details and follow the rules before you make big decisions, like getting married or having a baby.  Just like all of us, do research on all of the ins and outs of the very old and complex immigration laws and know the repercussions of your decisions before you make them.  If this couple (or the other couples mentioned in the NYT article) had done their homework before having the surrogate birth in the UK, they would have made arrangements to make sure the birth occurred in the US, or the US-born father should have been the sperm donor.  We see this here a lot on VJ--people complaining about immigration laws after making a decision, when they could have prevented the problem in the first place by knowing the laws before it was created.

I think there is an obvious reason why the birth occurred in the UK. The NHS. Mind you, the money they saved by having the taxpayer pay for all the medical costs they are now spending on flights back and forth to spend time with the baby.

 

[Dashinka 23,329]

1 hour ago, fip & jim said:

"Sounds like" is not evidence. There is a discrepancy between family law and immigration law, that the article is highlighting, which affects this family.

How does family law come into play here.  From what I read in the OP article, this appears to be simply immigration law.

[Dashinka 23,329]

40 minutes ago, JFH said:

I think there is an obvious reason why the birth occurred in the UK. The NHS. Mind you, the money they saved by having the taxpayer pay for all the medical costs they are now spending on flights back and forth to spend time with the baby.

 

With a UK surrogate couldn't they still have the baby in the UK even if the USC spouse was the donor? 

[fip & jim 452]

33 minutes ago, Bill & Katya said:

How does family law come into play here.  From what I read in the OP article, this appears to be simply immigration law.

Because the child and non-biological parent status is different under family law to immigration law. The child is recognised as the child of the non-biological parent under family law. Under immigration law the child is not acknowledged as the child of the non-biological parent, she is categorised as the child of her biological parents. If both areas of law were in alignment, i.e. she was recognised as the child of her married parents there wouldn't be an issue. 

[Dashinka 23,329]

15 minutes ago, fip & jim said:

Because the child and non-biological parent status is different under family law to immigration law. The child is recognised as the child of the non-biological parent under family law. Under immigration law the child is not acknowledged as the child of the non-biological parent, she is categorised as the child of her biological parents. If both areas of law were in alignment, i.e. she was recognised as the child of her married parents there wouldn't be an issue. 

I agree, the laws are not in alignment, but in this case it is only immigration law that matters.  A little more research and planning on the couples part could have avoided this whole mess.  

[dentsflogged 352]

3 hours ago, Bill & Katya said:

Now I have another question, if couples in this situation get divorced, how is custody determined?

It will depend entirely on how the birth process was conducted.

If the birth mother was entirely a surrogate and the birth certificate lists both married men as the parents, then the matter of custody is between only the two married/divorcing men. 

 

If the birth mother retains the status of birth mother and the birth father lives with his husband and child in a family-like relationship, then depending on the laws of the state that they reside in, in the event of divorce all three parties have the right to claim custody. 

At the end of the day, family courts will always fall on the side of what's "best for the child" though, and if the child is old enough should divorce occur, their own thoughts/feelings/desires will always lend heavy weight to the decision. 

[fip & jim 452]

25 minutes ago, Bill & Katya said:

I agree, the laws are not in alignment, but in this case it is only immigration law that matters.  A little more research and planning on the couples part could have avoided this whole mess.  

If immigration law changed to be in alignment with other areas of the law then it would avoid these problems. Immigration law is being used to discriminate against children conceived through reproductive technology. 

[Dashinka 23,329]

11 minutes ago, fip & jim said:

If immigration law changed to be in alignment with other areas of the law then it would avoid these problems. Immigration law is being used to discriminate against children conceived through reproductive technology. 

I agree, and as I said before, there is a process for changing those laws.

[Dashinka 23,329]

4 hours ago, fip & jim said:

It's a typical example of an organisation being reactive vs proactive, i.e. Reactive: Reacting to the past rather than anticipating the future. Proactive: Acting before a situation becomes a source of confrontation or crisis. It's hardly surprising but still discrimination. The state is saying this child is born "out of wedlock" due to her biological parentage when in fact her legal parents are married. 

 

 

Correct me if I am wrong, but aren’t most laws reactive rather than proactive?

[Calicolom 265]

7 hours ago, JFH said:

Thought this was interesting...

 

Two men in a same-sex marriage - 1 USC by birth, 1 by naturalization (still also has British citizenship), live in the US and had a child through a British surrogate mother. Child was born in the UK. Bio father of the child is the naturalized USC, not the USC by birth. Because the child was born of a surrogate, the child is viewed by USCIS as being 'born out of wedlock' and the naturalized USC is listed as the father and cannot pass on citizenship (although I don't know why not, maybe he wasn't a USC at the time of the birth?). CRBA has been denied.

 

https://www.nytimes.com/2019/05/21/us/gay-couple-children-citizenship.html

 

I don't know if they have started the I-130 yet to get the baby an immigrant visa but they certainly should and the sooner they do, the sooner it will be completed.

 

Interesting that babies born this way are seen as 'out of wedlock'. Obviously the two men can't both be biological parents but they are the legal parents as they are married. To me that's no different from a married woman having an affair and giving birth as a result of that affair and passing the child off as her husband's. The husband will be the legal father because they are married. Even if he is not the bio father. But a married woman giving birth would never be questioned as to who is the biological father of her child, nor would it even matter. Should this case be any different?

2 daddys.

[thatguyuknow 147]

This is somewhat relevant, it's a discussion forum afterall. 

 

I know in the UK (until I think) 2005  British Citizenship status could not come through the father unless the parents were married. 

 

It's a recently new thing (in the past 14 years) to recognise an unmarried father as having parental rights. 

 

What previously happened before 2005 in the UK but after 1983 was status would be passed on through the mother. Before 1983 if the child was born abroad status had to come though the Father and the parents needed to be married for the child to be a British Citizen. 

 

Edit: and between 1983 and 2005 if the child was born abroad, the mother was born abroad and the parents we'rnt married the child would not have an automatic right to British Citizenship. 

 

In all cases (of no automatic BC) the child would have to register(naturalize) as a 1(3) BNA 81 and it would be at the discretion of the state if the child would become a BC. 

 

Edited May 24, 2019 by thatguyuknow

[Cyberfx1024 7,978]

7 hours ago, fip & jim said:

Could you explain that, please?

I saw this topic on the Reddit immigration thread about a week ago. The US-Israeli couple listed in this article are fighting to not just bring their child to the USA but to make the child a naturalized citizen "that can run for President" at a later date. They can bring the child to the USA as a resident just like the bio-father. 

[HRQX 4,145]

38 minutes ago, Cyberfx1024 said:

They can bring the child to the USA as a resident just like the bio-father. 

Exactly. And looks like INA Section 320 will apply: https://travel.state.gov/content/travel/en/legal/travel-legal-considerations/us-citizenship/Child-Citizenship-2000-Sections-320-322-INA.html

39 minutes ago, Cyberfx1024 said:

The US-Israeli couple listed in this article are fighting to not just bring their child to the USA but to make the child a naturalized citizen "that can run for President" at a later date.

Child would be ineligible like Arnold Schwarzenegger: https://en.wikipedia.org/wiki/Natural-born-citizen_clause#Eligibility_challenges