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K. Collins
parents can find themselves divided by nationality from the individuals who
are charged, ethically and legally, with their care. As Bauböck and Titshaw
observe, in an era of voluntary and compelled migration, ius sanguinis is the
most effective method of protecting against such destabilising and precarious circumstances.
How to modernise?
I agree with Titshaw and Bauböck that the modernisation of ius sanguinis
citizenship, rather than its complete repudiation, offers a better way to
address the problems Dumbrava identifies. The difficult question is how? I
am hesitant to embrace Titshaw’s proposed method of modernisation, and I
offer a friendly but important amendment to Bauböck’s proposal.
Titshaw argues that the officials who administer citizenship law should
adhere to the parentage determinations made by officials who generally
administer family law. In the U.S., these are state-level family law judges
applying state law. But domestic family law, in the U.S. and elsewhere, does
not necessarily generate ideal or even tolerable outcomes on questions of
citizenship. Titshaw holds up a particularly poorly drawn U.S. federal policy
that regulates ius sanguinis citizenship as it applies to foreign-born children
conceived using ART, but there are many examples of how the use of state
family law to regulate citizenship transmission has generated equally objectionable outcomes. 5
Alternatively, Bauböck would have us adopt a ‘ius filiationis’ standard
that recognises the ‘social parent’ or the ‘primary caregiver’ as the parent for
purposes of ius sanguinis citizenship. He urges that this would help remedy
the ‘mismatch between biologically determined citizenship and parental
care arrangements that would also open the door to abusive claims’. He is
correct. My concern, however, is that his emphasis on ‘social parenting’ and
‘primary caregiving’ is insufficient and has its own perils. First, it could
5
For example, in 1940 the federal ius sanguinis citizenship statute was amended
to include the nonmarital children of U.S. citizen fathers under certain circumstances, such as when the father had ‘legitimated’ the child. Federal officials
turned to the law of the father’s domiciliary state to determine whether
legitimation had, in fact, occurred. In the 1940s and 50s, marriage to the
child’s mother was a very common mode of legitimation, but federal officials
making citizenship determinations would not recognise an interracial marriage
as the basis of a child’s citizenship claim if the father’s home state banned such
marriages – and many did. See Collins, ‘Illegitimate Borders’, above n. 2, at
2210.
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