Defining family in immigration law: accounting for nontraditional families in citizenship by descent.

AuthorDegtyareva, Victoria

NOTE CONTENTS I. NONTRADITIONAL FAMILIES AND ARTIFICIAL REPRODUCTIVE TECHNOLOGIES II. PROBLEMS OF DEFINITION IN CITIZENSHIP BY DESCENT A. The Regulation of Citizenship by Descent B. Conflicting Interpretations 1. Blood Relationship 2. Born in Wedlock C. The Impact of the Conflict III. DEFINING FAMILY A. The INA Definition B. The State Law Definition C. Applying the Definition to Citizenship by Descent 1. Blood Relationship 2. Born in Wedlock IV. COMPARING THE INTERPERSONAL DEFINITION TO OTHER PROPOSED SOLUTIONS CONCLUSION At most stages of the immigration process, immigration officers must make important decisions about what constitutes a family and which families are most deserving of reunification. When someone born abroad claims U.S. citizenship, immigration authorities must determine whether that individual is the child of a U.S. citizen. (1) When determining who should be admitted into the country, most spots are allocated to those with familial relations in the United States. (2) When deciding whether someone should be deported, immigration authorities must account for family ties and hardships. (3) In making these determinations, the authorities theoretically strive to promote family unity (4) and give individuals the opportunity to form and sustain their families. Unfortunately, they must inevitably deny these benefits to some. The consequences of these denials are enormous: not only do the denied individuals lose the right to reside with those whom they consider family, but they also lose official recognition of their family identity.

Despite the substantial effects that immigration law can have on the family, the Immigration and Nationality Act (INA) (5) fails adequately to define family, especially the parent-child relationship. Thus, the INA fails to give authorities clear guidance on who deserves reunification. While the INA does provide definitions of "parent" and "child," (6) these definitions do not address the issues posed by the emergence and growth of nontraditional families--including those in which children are raised by nonbiological parents and those in which children are born through assisted reproductive technologies (ART). (7)

The INA assumes a traditional two-parent view of the family. In nontraditional families, however, parental roles may be split between three or more parties, creating the possibility of a biological mother and father, an intended mother and father, and a gestational mother. "Biological parents" refers to those individuals who are biologically related to the child; "intended parents" to those who intend to care for and raise the child; "gestational mother" to the woman who carries the child to term and physically gives birth to the child; and "legal parents" to those individuals who have legal parental rights and responsibilities with respect to the child. (8) By failing to address the possibility of split parental roles, the INA creates substantive ambiguities in many of its provisions and risks denying immigration and citizenship benefits to those who are, in other contexts, considered to be children of U.S. citizens and permanent residents.

In a 1997 article, Bernard Friedland and Vaterie Epps first considered this problem and proposed three possible solutions: (1) Congress can specify how immigration law should treat each type of nontraditional family; (2) Congress can reconceptualize its definition of family by allowing more than one mother and father; or (3) Congress can deal with nontraditional families by incorporating state and foreign law by reference instead of adopting a unified definition of family. (9) Friedland and Epps argued that the incorporation-by-reference solution would be most appropriate because state and foreign governments are experienced in family law. (10) Since then, however, there have been major legal developments concerning nontraditional families. In 1997, state law on ART was poorly developed and widely varied. Now, state family law is beginning to converge on many issues relating to ART. Furthermore, several entities have addressed these issues in the immigration context and have reached different conclusions, highlighting the need for the prompt resolution of the ambiguities in a unified manner.

Based on these developments, this Note argues that none of the solutions proposed by Friedland and Epps is adequate. Instead, the Note proposes that immigration law should adopt a unified definition of family that is based on interpersonal, rather than biological, relationships. These interpersonal relationships should be based on factors such as one's intention to enter into familial relations and the provision of care and support. This definition is consistent with the INA and the family law of a majority of states, and it resolves the issues that nontraditional families pose for many sections of the INA.

This Note proceeds in four parts. Part I describes types of nontraditional families and their increasing prevalence in society. This Part focuses on families formed through ART because, unlike other nontraditional families, such families almost always contain clearly defined parental roles.

Part II discusses the problems that immigration law poses for these nontraditional families by failing to define adequately the notion of family. Although this lack of definition affects many areas of immigration law, this Note focuses primarily on the regulation of citizenship by descent because both the Ninth Circuit and the Department of State have addressed the definition of family within these provisions. These two entities have adopted conflicting interpretations, underscoring the need for clarification in this area. This Part concludes with a brief discussion of how the lack of definition affects other sections of the INA, such as provisions dealing with immediate relatives and family-preference migration.

Part III argues that defining family based on interpersonal relationships can solve these substantial problems. Section A examines provisions of the INA to show that this definition of family is consistent with current immigration law. Then, Section B examines state family law, which also defines family based on interpersonal relationships. Section C argues that defining family based on interpersonal relationships solves the problems in citizenship by descent identified in Part II. This Section also argues that the interpersonal definition is applicable to other problematic sections of the INA that require determining who qualifies as a child.

Finally, Part IV compares the interpersonal definition proposal to those presented by Friedland and Epps, arguing that defining family by interpersonal relationships is a more effective solution.

  1. NONTRADITIONAL FAMILIES AND ARTIFICIAL REPRODUCTIVE TECHNOLOGIES

    There are many different types of nontraditional families, most of which are not addressed by current immigration law. In some, children are raised by family members other than the biological parents; in others, children are raised by one biological parent and the parent's spouse; in still others, children are born through artificial reproductive technologies. The last group, children born through ART, can be further subdivided into two broad categories: children whose intended mother is also the gestational mother and children born to a surrogate mother. Births through the first category of ART can be accomplished either through artificial insemination or through in vitro fertilization (IVF). In cases of artificial insemination, a physician artificially inseminates the intended mother with sperm donated either by the intended father or by a donor. (11) In this procedure, the intended mother is always the biological and gestational mother, as well. If the sperm is donated by a donor, however, then the intended father is not the biological father.

    IVF can be accomplished in two ways. In the first scenario, the intended mother's eggs are surgically removed and fertilized with sperm from either the intended father or a donor. The fertilized eggs are then returned to the intended mother's body. The intended mother is thus both the biological and gestational mother, but the intended father is not necessarily the biological father. In the second scenario, eggs are removed from a female donor and fertilized with sperm from either the intended father or another donor. The eggs are then donated to the intended mother. (12) Here, the intended mother is the gestational mother but not the biological mother. Likewise, the intended father may not be the biological father. Thus, the intended mother is always the gestational mother in all cases under the first category of ART, even though the intended parents are not always the biological parents.

    Surrogacy agreements comprise the second category of ART. There are two types of surrogacy agreements: traditional and gestational. In traditional surrogacy, the surrogate mother is artificially inseminated with sperm from either the intended father or a donor. The surrogate mother is thus both the gestational and biological mother--although she is not the intended mother. (13) In gestational surrogacy, eggs from the intended mother or a female donor are inseminated with sperm from the intended father or a male donor using IVF and then inserted into the surrogate mother. (14) The surrogate mother is thus only the gestational mother, and the intended and biological mothers are not necessarily the same. In surrogacy agreements, all three parental roles-intended, biological, and gestational--may be split. Table 1 summarizes the different types of nontraditional families made possible through both categories.

    A common thread connecting these diverse types of families--including those formed through ART and those formed through traditional reproduction--is that children in these families may have parental relationships with someone other than their biological parents. In other words, these children may...

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