U.S. demands proof of parentage for IVF babies born in Israel
As Israel continues to evolve as a world leader in fertility treatments, some legal circles are suggesting that the U.S. government may be concerned about fraudulent efforts to secure U.S. citizenship.
American embassy and consular officials in Israel are requiring applicants seeking U.S. citizenship for their children to prove parentage in cases where they received fertility treatments, causing them consternation and bureaucratic hassles.
While Americans contacted for this article say the phenomenon of inquiring about fertility treatments is new, the U.S. consulate in Jerusalem stated that there has been no change in policy.
"The interviewing officer asked me over a microphone, 'Are these your eggs?'" said Ellie Lavi of Tel Aviv, a Chicago native in her 40s who applied for U.S. citizenship for her newborn twins two years ago at the U.S. Embassy in Tel Aviv. "I was absolutely stunned, humiliated."
Lavi is one of several mothers interviewed by Haaretz who expressed extreme discomfort at being asked such personal questions by an official stationed on the other side of a glass window, within hearing distance of other applicants.
Kelli Brown of Modi'in, a 33-year-old mother of three from La Crosse, Wisconsin, says she was shocked when she was asked about her baby's origins when she visited the Embassy in Tel Aviv to register her three-week-old son.
"The interviewing official asked me if I had used ART to conceive the baby," recalls Brown, referring to Assisted Reproductive Technology, which is used to help women become pregnant when they are unable to conceive naturally or carry a fetus to term. ART includes such techniques as in vitro fertilization (IVF ), sperm or egg donation, surrogacy, and other methods, each with its own implications for citizenship under U.S. law.
"I said, 'Yes,'" Brown recalls. "My husband and I are very proud of it. But then I was asked to provide proof of paternity."
As Israel continues to evolve as a world leader in fertility treatments - performing some 28,000 IVF procedures a year, according to a report in the New York Times last year - some legal circles are suggesting that the U.S. government may be concerned about fraudulent efforts to secure U.S. citizenship.
"There should be a distinction between those applicants using fertility tourism and U.S. citizens who actually live abroad, as I do," said Lavi, whose experience prompted her to launch "&baby makes two," a consultancy for women seeking fertility treatments. "As a woman and as a U.S. citizen living abroad, I feel my rights and my personal privacy have been violated. It's not the government's business."
Exasperated, Lavi says she is currently setting aside attempts to attain citizenship for her children, though she says she intends to write U.S. Secretary of State Hillary Rodham Clinton to complain about her experience in Tel Aviv.
Legal scholars and immigration officials told Haaretz this week that they take issue with the U.S. policy, but note that ART-related questions raised in citizenship interviews are consistent with the current official policy of the U.S. Department of State.
"Unfortunately, the State Department's published policy regarding U.S. citizenship transmission relies entirely on the nationality of the sperm and egg used to conceive the baby," says Scott Titshaw, an associate professor of law at Mercer University School of Law in Macon, Georgia, who has written extensively on the issue. "Thus, a legal mother who bears a child in Israel does not transmit her U.S. citizenship unless her egg was used to conceive the child. It is also irrelevant that her U.S. citizen husband (or wife ) is the child's legal parent, unless he is also the child's genetic father," he said.
Titshaw says the "unfortunate" U.S. policy is "outmoded and inappropriate to the situation of many modern families."
"It ignores the intent and legal obligations of parents, focusing solely on their fertility and genetic links," he said, noting that the U.S. Immigration and Nationality Act (INA ) does not mandate this position. He notes that as one federal court of appeals has recognized, the INA focuses on the family law of the child's birthplace to determine the parenthood of a baby it views as "born in wedlock."
Brown was able to provide required documentation for her intrauterine insemination, or IUI fertility procedure, by requesting a form from her fertility clinic - a request not usually or easily honored by most Israeli fertility centers, according to several specialists who spoke with Haaretz.
But for mothers like Lavi, who undergo an IVF, their options are far more complicated, according to Liam Schwartz, a Tel-Aviv attorney specializing in corporate relocation law.
"The deck is currently stacked against American citizen mothers who find themselves in this situation," says Schwartz. "The wonders of modern technology dictate that legal minds take another look at this issue to determine whether current state policy is up to date from a moral standpoint." The U.S. Consulate in Jerusalem issued a statement to Haaretz, noting, "This interpretation of law by the Department of State has not changed and has been consistently applied by all U.S. embassies and consulates overseas, including the U.S. Consulate General in Jerusalem. Consular officers are responsible for confirming that all requirements for the transmission of citizenship have been met, including resolving any questions related to ART."
As for the mothers' concerns that their interviews be held at a distance from other applicants in the room, the consulate added, "The staff of the U.S. Consulate General in Jerusalem is dedicated to providing the highest quality of customer service. As soon as a consular officer becomes aware that a sensitive matter has arisen, the customer is directed to a private area for the interview to be continued."
Meanwhile, a U.S. Consular report may indicate that a change could be in the offing.
According to a June 2011 report by the State Department's Office of Inspector General on the U.S. Embassy in India - a major fertility treatment center in its own right - the Bureau of Consular Affairs "is aware that the regulations and laws [relating to the transmission of citizenship through surrogacy] have not kept pace with technology and is working with legal advisers and other agencies to update policies."