Jerusalem — Beth (not her real name), an American who made aliyah in 1990 at the age of 28, says she always wanted to be a wife and mother.
“I did the whole JDate thing, the Israeli dancing scene,” in order to meet someone, Beth told The Jewish Week from her home in the center of Israel. “I always said that if I wasn’t married by the age of 35, I would consider having a child on my own.”
Beth underwent her first artificial insemination procedure in Israel (treatments are free through the second live birth, till age 45) when she was 42 and the first of 12 cycles of IVF when she was 43. Though she became pregnant three times, she miscarried.
At 45, Beth took some time off to recover from the treatments and applied to adopt a child. A year and a half later, at her doctors’ advice, she tried conceiving with donor eggs. Since almost no egg donations were being carried out in Israel at the time, she flew to Kiev, to an Israeli/Ukrainian egg donor program. It didn’t work.
Still determined to become a mother, Beth flew to Kiev one more time and became pregnant with twins, who were born in 2009.
While Beth knew she would encounter challenges as a single mother, it never occurred to her that obtaining American citizenship for her kids would be one of them.
Two months after giving birth, the new mother went to the American embassy in Tel Aviv to apply for her children’s American passports. What transpired shocked her.
“When we got to the last counter, the clerk asked me, offhandedly, ‘Did you get pregnant with donor eggs?’ I said, ‘Yeah,’ since I wanted to help her,” assuming [the clerk] was having trouble conceiving.
“I’m sorry,” the clerk replied. “We have to reject your application.”
Angry and confused, Beth told the clerk, “You’ve got to be kidding. I carried these babies for nine months. They have my blood. DNA aside, these are my children!”
The entire conversation was conducted in a crowded room, while the two were separated by a glass division, and, as many other have complained, the clerk asked her questions by microphone, for all to hear.
What Beth — like most Americans who live abroad — didn’t know is that the U.S. State Department won’t grant citizenship to a child born outside the U.S to an American parent unless a genetic link can be established.
Adoption is the exception.
Although the law — Immigration and Naturalization Act 301 —which has been on the books for decades grants citizenship for the foreign-born children of an American citizen who meets specific residency requirements, the State Department’s Foreign Affairs Manual, volume 7, states that the parent and child must be related “by blood.”
Despite the manual’s longstanding regulations, until three or four years ago, American ex-pats in Israel were never asked how their children were conceived. Even now, it depends on whether a clerk suspects a mother is too old to have conceived without fertility treatments.
Why consular officials suddenly started to enforce these regulations, at least in some cases, isn’t clear.
While the bloodline criteria is applicable to all children of Americans born abroad, the fact that Israel has so many American ex-pats, coupled with Israel’s free fertility treatments, would suggest that a disproportionate percentage of parents being asked to prove parentage are in fact living in Israel.
Until the Israeli daily newspaper Haaretz published an article on the genetic criteria last weekend, most American parents in Israel were unaware of them.
As the article noted, the Jerusalem consulate’s website currently contains a section on Assisted Reproductive Technology, and links to a U.S. government web page outlining “important information for U.S. citizens considering the use of Assisted Reproductive Technology (ART) abroad” (http://travel.state.gov/law/citizenship/citizenship_5177.html ) and links to the page-long list of regulations.
But most parents go straight to the U.S. embassy website, where the ART information has appeared sporadically at best.
“The consular section is aware [of the matter] and is working on making it more clear,” Curt Hoyer, the embassy’s press attaché, told The Jewish Week. The ART section was uploaded later that day.
The manual’s section on Citizenship in Artificial and In Vitro Insemination Cases states that:
“It is not enough that the child is presumed to be the issue of the parents’ marriage. Absent a blood relationship between the child and the parent on whose citizenship the child’s own claim is based, “U.S. citizenship is not acquired.”
Further, if doubt arises that the citizen “parent” is related by blood to the child, “the consular officer is expected to investigate carefully.”
Michele Wolgel, an Israel-based attorney who specializes in U.S. immigration law, said the State Department regulations are designed to weed out fraud.
“An American man impregnates an illegal alien in the U.S. She goes back to her country and informs the man that she’s pregnant. He says ‘great, I’ve always wanted a baby.’ He wants the baby to be an American citizen but before the baby gets citizenship, first he has to provide proof that he’s the biological father.”
The problem, Wolgel said, is that the “bloodline” criteria are now being used to prevent American citizens who conceived using donated eggs or sperm from transmitting citizenship to their children.
“It was written before most reproductive technology was invented. It hasn’t kept up with the times,” she said.
According to a spokesperson, the State Department “is currently studying whether we can interpret the Immigration and Nationality Act to allow U.S. citizen parents to transmit U.S. citizenship to their children born abroad through artificial reproductive technology in a broader range of circumstances.”
Wolgel said the way the law is being implemented “raises issues of privacy” and whether the U.S. government has the legal right to ask how someone has conceived.
Secondly, Wolgel said, “the government is saying that the person who donated the sperm or egg determines citizenship. So hypothetically, a non-American can get an egg from an egg donor in America. The woman has never stepped foot in the U.S, except to get impregnated, and she gives birth in Israel.”
According to this policy, “that child can get U.S. citizenship because the biological mother lives in the U.S.”
Nor is it just about motherhood. If the father is American and the mother is Israeli, and the couple used her eggs but donor sperm to get pregnant, there is no bloodline with the father.
Attorney Liam Schwartz, a Tel Aviv-based expert in relocation law, sees an additional problem: profiling by a person’s age and, often, marital status or sexual orientation.
“It’s clear that the consulate officer has a protocol by which they must ask” how children were conceived, “and the women who are closer to the end of their reproductive years, especially if they are single, are apparently being profiled, “ Schwartz said. “I think this may be inappropriate from a legal perspective.”
That’s what happened to “Sarah,” who went to the American consulate in Jerusalem in 2010 to register her son for citizenship.
“I felt I was being interrogated. It was so intrusive and it brought me to tears,” said Sarah, a single mother in her early 40s who conceived with her own eggs. “I know someone, a lesbian who used both donor egg and donor sperm, who intentionally gave birth in the U.S. to avoid this problem.”
Along with Beth, “Hanna,” an Israeli-born American citizen who conceived in Israel with donated eggs, tried filing a class-action suit against the State Department to have her child recognized as a citizen, but the attempt fizzled out due to bureaucratic hurdles.
“I had no idea about the law. Once I knew, I filed a suit; I went through a lot of lawyers. I wrote the American embassy, the State Department, and all I got were rejection letters,” Hanna said wearily. “I’m angry and I’m frustrated.”
Both Hanna and Beth were told they can obtain resident alien visas for their children, and that this would enable them to live in the U.S.
Wolgel calls this absurd.
“If they’re not their children, how can they be given a visa? These women are parents enough for a visa, but not for citizenship?”
Hanna isn’t interested in a visa. “I don’t want to live in the States right now,” she said of the visa’s residency requirement. “If an adopted child with no blood ties to an American is granted citizenship, why not my child, who I carried inside me?”
Beth hasn’t requested a visa for her twins “out of principle.”
She’s adamant that her children “deserve American citizenship as the children of an American citizen. They have my blood because I carried them for nine months. They came out of my body. I’m the only parent listed on their birth certificate.
“I’m their mother,” Beth said.