The Rights of Stateless Children Born from Cross-border Reproductive Care

• Publication year: 2023

The Rights of Stateless Children Born from Cross-Border Reproductive Care

Carson Cook

THE RIGHTS OF STATELESS CHILDREN BORN FROM CROSS-BORDER REPRODUCTIVE CARE

Table of Contents

Introduction..........................................................................................287

I. Background................................................................................289

A. The Problem of Statelessness .................................................. 289
B. An Overview of Assisted Reproductive Technology.................. 291
C. How Cross-Border Reproductive Care Can Lead to Statelessness ........................................................................... 294

II. Analysis of Existing Law..........................................................299

A. Establishing Parentage in International Law .......................... 299
B. Existing Regulation of Cross-Border Reproductive Care......... 303
C. Existing Protections for Stateless Children in International Law ........................................................................................ 305
D. Limitations of Existing Statelessness Law in the Context of Cross-Border Reproductive Care ............................................ 308

III. Potential Solutions...................................................................309

A. Potential Solutions in International Law ................................. 309
B. Potential Solutions in Destination Countries ........................... 313
C. Potential Solutions in Receiving Countries.............................. 315

Conclusion.............................................................................................317

Introduction

In July 2018, Kashka and Sinead, a lesbian couple of Polish and Irish nationality, gave birth to their daughter Sofia in Spain.¹ The couple resided in Ireland but looked abroad for reproductive care because of the high cost of Irish fertility clinics.² They eventually chose Spain to be Sofia's birthplace because both their names could be on the child's birth certificate.³ After four years of trying to conceive a child through in vitro fertilization (IVF), Baby Sofia was

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born, but the family's struggles were still far from over.⁴ First, Ireland refused to transcribe Baby Sofia's birth certificate because two women were listed as mothers.⁵ Then, Poland did the same.⁶ In both countries, transcription is a necessary step to obtain identity documentation and a passport.⁷ Without a passport, the family could not return home to Ireland.⁸ The family's final remedy was to apply for Spanish citizenship for Sofia.⁹ Although children born in Spain to non-Spanish parents normally are not eligible to be Spanish citizens, there is an exception through which children who would otherwise be stateless may acquire Spanish nationality.¹⁰ Even still, such applications can take years to be processed and approved.¹¹ While they waited, the family was stuck in Spain, unable to travel or go home, unable to introduce their daughter to her grandparents and cousins.¹² Baby Sofia was in legal limbo—not Irish, not Polish, not Spanish, but stateless.¹³

Baby Sofia's story is neither unique nor is the problem faced by Sofia and her parents unique to same-sex couples.¹⁴ Different-sex couples and single parents who travel abroad for reproductive care also face obstacles and the risk that their child will be born stateless.¹⁵ Increasingly, hopeful parents are traveling to other countries to benefit from assisted reproductive technology (ART) that is illegal, unavailable, or unaffordable in their home country.¹⁶ This phenomenon is sometimes called fertility tourism or reproductive tourism, although this Comment will refer to it as cross-border reproductive care.¹⁷ Many complicated legal problems can arise from cross-border reproductive care

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arrangements.¹⁸ This Comment will focus on these problems through the lens of children's rights, particularly a child's right to a nationality.

This Comment will first examine the problem of statelessness, particularly for children born stateless. The Comment will then discuss the history of ART, methods of ART, and the state of cross-border reproductive care. This Comment will then explain how statelessness arises for children born through cross-border reproductive care arrangements. Next, this Comment will discuss existing international law on parentage and cross-border reproductive care. This Comment will also explore what protections exist for stateless people—stateless children in particular—under existing international law. After explaining existing international law, this Comment will consider the limitations and problems arising from current law. Finally, this Comment will propose potential solutions in international and domestic law. Within domestic law, this Comment will discuss solutions for countries that are destinations for cross-border reproductive care and receiving countries.

I. Background

A. The Problem of Statelessness

Statelessness is the condition of having no legal or effective citizenship.¹⁹ Some commentators will distinguish between de jure and de facto citizenship.²⁰ De facto statelessness includes people who cannot prove or verify their citizenship or otherwise cannot access the benefits and protections citizenship confers.²¹ "Put another way, persons who are de facto stateless might have a legal claim to the benefits of nationality but are not, for a variety of reasons, able to enjoy these benefits. They are, effectively, without a nationality."²²

Consider the story of Baby Sofia from the beginning of this Comment. Sofia is likely not de jure stateless.²³ If she is not a citizen of Ireland or Poland, she can acquire Spanish nationality because of Spain's safeguards against statelessness.²⁴ However, while the countries work out which state she belongs

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to, Baby Sofia is effectively stateless, unable to travel or access public services.²⁵ Undoubtedly, there are times when it is useful and even necessary to distinguish between de jure and de facto statelessness.²⁶ However, because de facto stateless people face the same obstacles as de jure stateless people and it is often difficult to tell which term applies to an individual, this Comment will from now on use the broad definition of statelessness that includes those who are effectively stateless.

The right to a nationality is one of the most fundamental rights a person can possess because one's nationality determines what other civil, political, economic, and social rights a person can exercise within a territory.²⁷ For these reasons, the right to a nationality has been called "nothing less than the right to have rights."²⁸ The inverse of this axiom is that stateless people are denied or face barriers to accessing every right.²⁹ Stateless people will face many hardships such as difficulty obtaining identity documents, acquiring jobs, receiving medical care, marrying, traveling, owning property, enrolling in school, and registering the birth of their children.³⁰ That final hardship is notable for it makes statelessness a problem often perpetuated from one generation to the next.³¹

It is difficult, if not impossible, to summarize all the ways a person can be or become stateless.³² The United Nations estimates that there are at least 4.3 million stateless people worldwide, about a third of whom are children.³³ There are certain well-trod paths to statelessness: the dissolution of a state, territorial transfer, racial or ethnic discrimination, displacement and migration, and revocation or renunciation of citizenship.³⁴ However, statelessness is sometimes caused by unique situations that slip through the cracks of citizenship law and administrative practice.³⁵ Therefore, rather than attempting to catalog all the

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ways a person can lack citizenship, it is more helpful to understand how a person can obtain citizenship.³⁶

Citizenship can be acquired at birth (birthright citizenship) or after birth (naturalization).³⁷ Birthright citizenship is based on either where a child is born, known as jus soli or right of the soil, or based on the parents' citizenship and family heritage, known as jus sanguinis, right of the blood, or citizenship by descent.³⁸ Today, most states use a combination of jus soli and jus sanguinis to some degree.³⁹ For example, individuals born in the United States are granted citizenship regardless of their parents' citizenship. Typically, individuals born abroad to at least one U.S. citizen parent can acquire U.S. citizenship.⁴⁰ Treaties and international judicial bodies have repeatedly recognized that a state's sovereignty includes its discretion to dictate the terms of eligibility for citizenship.⁴¹

B. An Overview of Assisted Reproductive Technology

Although there is evidence that the ancient Hebrews practiced surrogacy and artificial insemination has been used since the late 1800s, ART is largely a phenomenon of the late 20^th century. The first baby to be conceived through IVF was born in 1978.⁴² IVF is a procedure in which an egg is fertilized outside the body and inserted into a womb for gestation.⁴³ The egg may come from the gestational mother or a donor, and the sperm may come from the intended father or a donor.⁴⁴ Another technological development that has expanded the use of ART is cryopreservation, a process for freezing and storing gametes—sperm, eggs, or embryos—in liquid nitrogen.⁴⁵ This process allows the genetic material to be preserved for many years for possible future implantation into a womb for

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gestation.⁴⁶ As the technology has developed and success rates have improved, the use of ART has skyrocketed.⁴⁷ For example, in the United States, the use of ART doubled in the 2010s.⁴⁸ By one estimate, more than eight million people have been born from ART so far.⁴⁹

Today, artificial insemination and IVF are legally allowed in almost all countries.⁵⁰ However, in most countries, the treatments are...