I wrote here once about my daydream of bringing a few Founding Fathers back to life for just a few weeks, just to show them what has become of the nation they founded. I'd include Abe Lincoln, too, though he wasn't a Founding Father. He deserves to know that he DID save the Union, and that it's still in existence thanks to him. There's a thread around here someplace but I'm too lazy to look it up.

There are many, many things I'd love to explain to the group about modern life, but in vitro isn't one of them. It would be difficult enough for them to process even things like radio, cars, airplanes ...

This is one problem with constitutional interpretation. What would the Framers have thought of in vitro? Impossible to answer. Talk about beyond the scope of imagination ...

All of this could have been solved if the Mom had had the children on US soil -

Like the President's mom had him in Honolulu.

I've always had a hard time calling these women surrogate mothers -- since they are the biological mother of the child there is no surrogacy involved in terms of the child -- which the court rightly recognized.

IMO these woman were surrogate wives. They stepped in to perform the task the husband expects of his wife -- to bear their child.

Surrogate wives? The surrogate in these cases is a paid incubator IMO and the resulting baby does not share her DNA.

Really? Wife == bear my child?

I concede you are entitled to your opinion, but that concept is so far removed from my personal reality as to be unrecognizable.

And marital roles aside, I would point out that as I understand this decision and this discussion, "biological mother" is intended to refer to the ovular donor, not the womb-carrier/birth-giver. And aren't some so-called "surrogate mothers" implanted with the ovular tissue of sometimes the legal parent, and sometimes yet another, third-party, donor? In which case it would appear there is no more (legal) recognition of the surrogate as a biological mother than there is of a natural mother, except to the extent that the child is assumed to be the product of her own natural ovular tissue (chromosomes).

Sorry but I don't see this so much about "men were making policy" as much as it was about the facts of how human's reproduce and recent medical interventions.

Men and reproduction have been disconnected by the very nature of how human's reproduce. Without medical intervention men can even become fathers after they are dead (RFK, Clinton's dad, Malcolm Shabazz to name a few). The fact that a man can make a woman pregnant and walk away never even knowing it is a far cry from the woman having the live with the consequences the single encounter which resulted in pregnancy. That's just the reality of human's reproduction without outside help. Nothing to do with laws of anything else. Just biology. Men are disconnected while women are inexorably tied to birth.

This

Now men making policy is indeed one of the reasons I was denied birth control when I first tried to get it because I was not married. Yup I'm that old. That's about men making policy.

That's got nothing to do with the reality that for the entirety of human history reproductive history until a few years ago we always knew who the biological mother was -- the woman giving birth. We took on faith who the father was but we always knew who the mother was. That is no longer know that is true.

The immigration and citizenship laws seem clear. The woman went to a lot of trouble and expense to have these children and in the way that she did. She must have had a lawyer involved at some point and she certainly had the opportunity to find out what the laws were before she decided to return to another country to have the children. She had the choice of staying or returning to the US to have the children born on US soil and avoid this issue citizenship.

In India, there is a large Rent-a-womb business where single women and couples go to pick up their babies after they are born. So, instead of birth mother, they could be called 'incubators' but that seems so cold and mechanical. Of course, they are using euphemisms and I am sure the medical providers have more precise terms than those used by the media. The laws should,of course, use the most precise terms possible. The possibility of buying eggs and sperm on the market, choosing among them after looking under a microscope and designing a baby and then renting a womb in a foreign country is quite new. How many of these designer babies are going to be left behind if the proprietors don't like how they turned out?

So far as I am aware, no strand of DNA has ever gestated a fetus and carried it to term. No strand of DNA has comforted a sick child, taken her to her first day of school, put a dollar under the pillow for the Tooth Fairy, wrapped presents, or sent a child to college and watched her become an adult.

Attaching this denial based on so-called "biological" grounds to the mere doubt about whether the DNA belongs to one or two U.S. citizens (when the odds are nearly overwhelming that at least one of the donors was a citizen) apparently makes that the sole determining factor. The equally "biological" fact that the mother, who carried the child to term with the intention of being its mother, is completely ignored. Allowing a magic molecule, by itself, to confer or deny citizenship would create absurdities, such as a "natural born citizen" born abroad to two non-citizen parents with no connection whatsoever to the United States.

In the case of married couples, in jurisdictions including California, the genetic identity of the father is absolutely irrelevant, and there is an irrebuttable presumption that the husband is the father (Michael H. v. Gerald D. upheld the constitutionality of such a presumption). So husbands are entitled to a bright line rule in their favor, at least domestically.

Any rational analysis of parenthood has to address more complex questions than the presence or absence of a magic molecule. A bright line may be easy to analyze and it certainly makes it easy to decide cases. In the example of parentage, it makes it very easy to decide cases horribly wrongly and with tragic consequences.

While most disputes about IVF and other similar technologies erupt into litigation in the context of surrogate parentage, there is no reason the existence of a parent-child relationship is irrelevant in other contexts, such as that in this case. Just as I would no longer see the offspring of a stolen fertilized egg be considered a citizen when born to and raised by two people with no other connection to the United States (especially as the market in fertilized eggs may become global), I see no rational reason to deny citizenship to the child of an American citizen for the absence of such a genetic relationship.

Rational jurisdictions that have looked at the issue of parentage in this context have addressed it as the complex, multi-factored analysis it actually is in reality. We are not talking about molecules here, but of human beings. For example, New Jersey's Parentage Act:



In re T.J.S., 16 A.3d 386, 390-391 (N.J. Super. Ct. App. Div. 2011) (addressing rights of gestational surrogate mother and finding them not extinguished by gestational surrogacy agreement requiring mother to seek adoption). Note that in this case, the egg did not belong to the non-surrogate mother seeking parental status.

In this case, we cannot poll the anonymous sperm and egg donor. They effectively do not exist. The only person whose intent we know is that of the American citizen mother, who gave birth to a child with the intent of being its parent. The child is born to an American mother. The rule proposed by the State Department would make non-citizens of the children of any American using IVF with a fertilized egg not her own, solely based on the accidental location of birth, such as if she happened to give birth abroad after her flight was delayed.

It would also make the silly specter of birthers a potential reality: that is, an army of foreign-born "natural born citizens" who never had a connection in their lives to the United States other than a stolen fertilized egg. I imagine there are some wealthy foreigners out there who wouldn't mind buying a natural born American citizen child in this manner.

Someone should tell the woman in the article that all she has to do is go to Hawaii and register the births. After all, Hawaii gives out birth certificates to anyone regardless of circumstances.

Whole subject just pizzes me off somehow or other. Natural used to be so simple.

My point is that this is a legal question of citizenship. In the US, citizenship derives primarily jus soli , meaning "from the soil" -- that is, place of birth is paramount. Born in the USA = citizen.

An alternative approach, is jus sanguinis, meaning "from blood". That is applied by statutory enactment to children of US citizens born abroad, though not uniformly -- there have been varying rules over the years related to length of residence of the parents in the US, marital status of the mother, etc.

However, leaving it at that, the word "blood" in "sanguinis" means a blood relative. They didn't have DNA testing in 1776, but they had the concept of being a blood relation.

How do you determine whether a child is a blood relative? In 2012, that is done by a DNA test.

However, in the case of a surrogate mother who has been implanted with an embryo created from the sperm & ova of unrelated individuals.... there is no "blood" relation. Hence, that doesn't work. (Unless, of course, a woman is impregnated with ova donated by her identical twin sister -- see http://goo.gl/ZvNZY

The third way, by statute, that a child can gain automatic US citizenship is through adoption by a US citizen parent, but only if the child resides in the US.

Obviously the process of pregnancy and childbearing does influence the development of the child in profound way -- but so does breastfeeding, which is why I drew the analogy to a wet nurse - because wet nurses were common during most of human history, even if the practice is quite rare today.

In any case, there are 3 paths to automatic citizenship: by place of birth, by blood relation to a parent, and by a combination of adoption + residence in the US. The unrelated offspring of a US citizen domiciled in Israel doesn't happen to meet any one of those tests. That doesn't negate the relationship between mother and daughters -- any more than it would negate the relationship if a teenage single mother gave birth abroad only to discover that she did not meet the requisite number of post-majority years' of residence to enable her infant to be a citizen. It just doesn't happen to fit (yet) within the law.

Maybe the law will be changed to keep up with the times, maybe not.

Paris, Prince and Blanket.

While I would tend to go along with the “genetic descent” aspect of the argument, I am pretty sure that future advances in technology will make even this distinction less clear.
For example, consider Dick Cheney, who just received a heart transplant (no offtopic jokes, please) If, for the sake of argument, the donor heart came from a non-citizen, does that make Cheney less of a citizen?
New technology now makes it possible to predict many possible inheritable genetic diseases. I have no doubt that future technology may make it possible to prevent and eliminate those genetic diseases through some form of genetic transplant. If parts of the transplant material comes from a foreign source, what then is the status of the resulting whole?

In addition to CB's 3 ways to automatically acquire citizenship, there is the path by treaty. If the US for some reason decided to acquire Baja California in exchange for a slice of Texas, Congress could set the terms and conditions for granting citizenship to the residents. This is what happened when the different territories became states as well.

I think there are other methods, too. Tes put up a post somewhere about various other types of citizens. The one I remember is a child under five years old found alone within our borders. Without known parents OR a known birthplace, who's to say she's a citizen, but if she reaches the age of 21 she automatically becomes a citizen. Statutory citizen or something. There were others in her post, too.

I'm too bizzy to look that one up.

Maybe the twins' mother should look up this woman's attorney. SCOTUS heard and ruled on whether zygotes or children born after their father dies can get his social security benefits. We certainly do live in a brave new world with complications Huxley never dreamed of.

Astrue v. Capato

Congress can pass laws setting out requirements for acquiring citizenship by naturalization in all the different ways mentioned. What they cannot restrict or disturb are the born on US soil native from the moment of first breath natural born citizens regardless of whether they would have been before the 14th Amendment or not. This woman's twins do not fit in that category, so she has to deal with what Congress has done and every other ex-patriot has had to do. Her parental rights, duties and family issues are a matter for the states to decide should she return and live in one or the other. In the meantime, I suppose they will be determined under Israeli law. After all, they are not stateless.

Was the ova donor Jewish?

They heard arguments last week -- see transcript here: http://www.supremecourt.gov/oral_argume ... 11-159.pdf -- but they have yet to rule.

However, I think SCOTUS is likely to rule against that claim, as the LA Times op ed argues. Too much of a slippery slope there.

I am going by the very first statement of the nationality law. It only requires the parent to be an Israeli citizen.

Acquisition of Israeli Nationality

Israel's Nationality Law relates to anyone wishing to settle in Israel, as well as those already residing or born there, regardless of race, religion, creed, sex or political beliefs. Citizenship may be acquired by:
Birth
The Law of Return
Residence
Naturalization


Acquisition of Nationality by Birth is granted to:
Persons who were born in Israel to a mother or father who are Israeli citizens.

http://www.mfa.gov.il/MFA/MFAArchive/20 ... ationality

??? What does Israeli nationality law have to do with the issue? The mom is trying to get US citizenship for her children (i.e., establishing dual citizenship) -- I see no indication that there is any question as to their Israeli nationality, given that they were born in Israel to a Jewish emigre mother.

I'm willing to bet this was written during the ..... Bush Administration.

[Seriously, there's no date reference at the link. Any thoughts?]

Just check the archive link -- its easy to see the page history:
http://wayback.archive.org/web/*/http:/ ... p_782.html

Earliest available capture is Dec 30, 2004.

The Child Citizenship Act of 2000 went into effect in 2001. So, it was passed during the Clinton administration. The state department would have had to come up with policies to implement it so that would have started under Bush.

http://cfr.vlex.com/vid/51-28-identity- ... t-19721052

http://www.uscis.gov/files/pressrelease/CCA_102504.pdf

What I do not like is the occasional hint of eugenics in discussions about the possibilities of these new techniques. The genius sperm bank(s) bother me. The fact that a blatant racist, William Bradford Shockley Jr.,* was the first and repeated donor to one of the earliest genius sperm banks bothers me. Almost every technology has the capacity to be used for a bad, if not evil, purpose. This one has more than the usual level of danger about it, IMHO.