Family Matters: Modernise, Don’t Abandon, Ius Sanguinis
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ART requires fixing family and citizenship law
I agree with Dumbrava’s and Bauböck’s rejection of exclusive, unconditional ius sanguinis rules as inadequate in dealing with the consequences of
ART and modern family law.
I disagree, however, with the conclusion Dumbrava draws from his argument that ‘joint citizenship adds little to the legal and normative character of
the parent-child relationship’. In fact, the permanence and stability stemming from common citizenship among close family members can have profound consequences for the unity required to develop and maintain family
relationships.
I also disagree with Dumbrava’s argument that ‘the main problem’ is
that ius sanguinis ‘is parasitic on external factors concerning the legal
determination of parentage’. In fact, some federal States already delink federal citizenship determination and state or provincial family law,3 creating
greater problems than do citizenship laws that reflect legal parentage. In the
United States, for example, legal parentage is generally a matter of state
law. Yet, the US Constitution defines citizenship as an exclusively federal
matter,4 and Congress has established and revised a complex, autonomous
algorithm for determining when a citizen parent transmits US citizenship to
a child born abroad.5 The problematic example Dumbrava points out
regarding parents’ inability to transmit US citizenship to children conceived
through ART was created by a misguided autonomous federal policy,
not parentage determinations under family law.6 It could, and should, be
3
4
5
6
HCCH (2014), A Study of Legal Parentage and the Issues Arising from
International Surrogacy Arrangements, Prel. Doc. No 3C. Hague Conference
on Private International Law,66–68 (listing Australia, Canada and the United
States as examples). Available at http://www.hcch.net/upload/wop/
gap2015pd03c_en.pdf
The Fourteenth Amendment guarantees that ‘[a]ll persons born or naturalized
in the United States and subject to the jurisdiction thereof are citizens of the
United States and the state in which they reside’. Not only does this
Amendment adopt a nearly absolute ius soli rule, but it clarifies that citizenship
is a purely federal matter, with no meaningful state role beyond establishment
of its own standards for recognising state residence.
8 USC §§1401–1409. Available at http://www.uscis.gov/sites/default/files/
ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-9696.html
Under current US law, a genetic and legal father and/or one or more legal and
‘biological’ mothers (i.e., genetic and gestational mother(s)) transmit birthright
citizenship to children conceived through ART, but non-biological parents do
not. Titshaw, S. (2014), ‘A Transatlantic Rainbow Comparison: “Federalism”
and Family-Based Immigration for Rainbow Families in the U.S. and the
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