Is birthright citizenship based on legal or biological parentage?

[Karpatsky]

Had a very long argument with some friends recently about this article. My position was that the State Department is correct here because citizenship by parentage is biological and is not instantly transferred by marriage, based on the two following analogies:

1. Pre-birth adoptions (which I argue are not substantially different from surrogacies) from non-US parents do not get birthright citizenship (though they are granted citizenship given some circumstances)
2. If in a marriage between a non-US citizen woman and a US citizen man, if the woman cheated with a non US-citizen and had a child, my understanding is that that child would not be a birthright citizen.

While they argued that the judge was correct because under a surrogacy contract, the biological mother is never considered the legal parent.

I eventually 'won' the argument because the whole time they were saying the distinction was that 'born to' meant legal and 'born of' meant biological, (which I had never heard of) and this was a 'born to' case - but when we looked up the actual statute it was all 'born of'. But doing more research I failed to find anything to support that original assertion, so I'm not sure.

Who is correct here? If it is in fact unclear, what are the chances the Supreme Court will have to decide what 'born of' means at some point?

[Karpatsky]

edit: also I'm pretty sure there's some unconstitutional violation of privacy going on here as well

You've quoted the language used by the judge, but I don't see why it is cut and dry at the moment that the judge is wrong, and certainly not 'obvious'. For most all things, the judge is clearly correct that there is no need to prove parentage when the parents are married, but it definitely would should citizenship by parentage be biologically grounded. I don't see in this case that State is treating them differently arbitrarily - it doesn't have to do directly with their same-sex marriage but with their infertility, which is inherent to that. 

Basically, you're assuming the prior of my question, which is not 'what are the consequences of citizenship being based on legal, not biological parentage' but 'what aspect of parentage is citizenship by parentage based on'?

[Karpatsky]

edit: also I'm pretty sure there's some unconstitutional violation of privacy going on here as well

You've quoted the language used by the judge, but I don't see why it is cut and dry at the moment that the judge is wrong, and certainly not 'obvious'. For most all things, the judge is clearly correct that there is no need to prove parentage when the parents are married, but it definitely would should citizenship by parentage be biologically grounded. I don't see in this case that State is treating them differently arbitrarily - it doesn't have to do directly with their same-sex marriage but with their infertility, which is inherent to that. 

Yet I doubt current procedure would require a non-citizen mother married to a citizen father to prove that her child had her husband as the biological father. Applying that standard only in the case of same-sex marriages is discriminatory.

From my reading of current policy, a birth certificate is normally considered proof of genetic parentage. Obviously, this standard cannot apply to same-sex couples.

[Karpatsky]

edit: also I'm pretty sure there's some unconstitutional violation of privacy going on here as well

You've quoted the language used by the judge, but I don't see why it is cut and dry at the moment that the judge is wrong, and certainly not 'obvious'. For most all things, the judge is clearly correct that there is no need to prove parentage when the parents are married, but it definitely would should citizenship by parentage be biologically grounded. I don't see in this case that State is treating them differently arbitrarily - it doesn't have to do directly with their same-sex marriage but with their infertility, which is inherent to that. 

Yet I doubt current procedure would require a non-citizen mother married to a citizen father to prove that her child had her husband as the biological father. Applying that standard only in the case of same-sex marriages is discriminatory.

From my reading of current policy, a birth certificate is normally considered proof of genetic parentage. Obviously, this standard cannot apply to same-sex couples.

Then in order to be nondisciminatory, it can't apply to opposite sex couples either.

Leaving aside the issue of whether it makes sense for a birth certificate to list the two members of a same-sex couple as the birth parents, at worst doing so indicates that the kid has been legally adopted by the citizen parent and thus eligible for citizenship.

Good point. Perhaps then the likely outcome of all of this will be stricter requirements of proof of parentage for non-US citizen mothers.