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As Parenting Changes, So Should Citizenship: Outdated Nationality Laws Risk Leaving Some Children Stateless

Published in: Opinio Juris
Anita Elfriede Seiler-Lilles (1st L) and Anette Seiler ( 2nd L, applicants in the case), Phillip Lhl (C) and Guillermo Delgado (4th R) who have a pending case regarding domicile and the nationality of their children born by surrogate, and Johan Potgieter (3rd R) and Daniel Digashu (1st R, both applicants in the case) are seen having a debrief after the court verdict in Windhoek, Namibia on January 20, 2022.  © 2022 HILDEGARD TITUS/AFP via Getty Images

For most children, nationality is clear-cut. Most countries pass nationality down to children who are born to at least one of their citizens, while a smaller number grant nationality to any child born on their territory.

But citizenship laws are by nature more exclusive than inclusive. For children whose parentage or family structure is not recognized by the state, obtaining nationality and related documentation can be a daunting challenge.

That’s exactly what happened to Sara, who was born in Spain in December 2019, to a mother from the British territory of Gibraltar and a mother from Bulgaria. Spain issued a birth certificate recognizing both of her mothers as parents, but did not grant Sara Spanish citizenship, because neither of her parents were Spanish. Her Gibraltarian mother could not pass down citizenship because Sara was not born in Gibraltar. Her Bulgarian mother would typically have passed down her citizenship, but Bulgaria requested proof that there was a biological relationship between Sara and her Bulgarian mother.

The mothers declined to clarify which of them was biologically related to Sara, stressing that both of them are her legal parents. Bulgaria subsequently refused to issue identity papers, reasoning that it did not know which of the mothers was biologically related to Sara and did not recognize a birth certificate with two women as parents.

The case wound up in the European Union’s top court, which ruled in December that Bulgaria must recognize the Spanish birth certificate, and provide Sara with identity documents to ensure that she and her parents could freely travel. The court reasoned that recognizing Sara’s family relationships did not undermine national identity or public policy in Bulgaria, and that refusing to recognize those relationships threatened respect for private and family life, the rights of the child, and freedom of movement under the Treaty on the Functioning of the European Union and Treaty on the Charter of Fundamental Rights of the European Union.

While the case is a significant victory for children and parents in Europe, dilemmas like these are arising around the globe. An increase in diverse families – including single parent families, families with unmarried parents, or families with married same-sex parents – combined with advances in assisted reproductive services and greater use of surrogacy, has highlighted the exclusionary nature of citizenship laws. These not only limit families’ rights to move and travel, but the rights of children to a nationality.

Among the children who risk falling afoul of citizenship laws are those born to same-sex parents, particularly if their parents’ marriage is not recognized by the countries where their parents are citizens. In Namibia, a same-sex couple from Namibia and Mexico fought for two years before a court recently granted Namibian citizenship to their son, who was born through surrogacy in South Africa. The Ministry of Home Affairs and Immigration sought a DNA test to determine whether the child’s Namibian father was the biological father, which the couple refused.

The court found that the law only required the child to have a Namibian parent at the time of birth, and the child’s South African birth certificate listed his Namibian father as a parent. It rejected the notion that the court should scrutinize which father was biologically related to the child, finding that this was not in the best interest of the child, jeopardized the father’s privacy, bodily integrity, and dignity, and was discriminatory. The couple is still fighting to secure citizenship for twin infant daughters, also born through surrogacy in South Africa.

Until last year, the United States had withheld citizenship from children who had one or even two American parents but were born abroad, unless there was a clear biological link to an American parent. The policy made it difficult for many parents who used assisted reproductive technology, including same-sex couples, to secure citizenship for their children born outside the United States. The Biden administration recently announced it would extend US citizenship to children born abroad to married couples with at least one American parent, regardless of the American parent’s biological relationship to the child.

Statelessness threatens a range of human rights, especially for children. The Convention on the Rights of the Child obligates states parties to ensure that children are registered immediately after birth and acquire a nationality. Advocates have warned that children who are stateless can face difficulty moving freely with their families and accessing education, health care, or social programs.

For this reason, the 1961 Convention on the Reduction of Statelessness calls for states to grant nationality to children born in their territory who would otherwise be stateless. As of 2021, however, only 77 states are party to the Convention.

In 2014, the UN High Commissioner for Human Rights announced the Campaign to End Statelessness in 10 Years – aiming to eliminate statelessness by 2024. A central priority of the campaign is ensuring that children are not born stateless and are registered at birth, in addition to efforts to address major crises that leave people stateless, facilitate the naturalization of refugees, and issue nationality documentation to those who are entitled to it.    

To meet this goal, states need to address circumstances like those in Bulgaria, Namibia, and the United States. The patchwork of legal protections around nationality, recognition of diverse families, and assisted reproductive technology puts children at risk. Whether or not states recognize diverse family formations, they should recognize the parentage of children born into these families to ensure that those children’s rights are protected.

How might this be done? First, countries should take steps to recognize birth certificates and other proof of parentage issued abroad, even when the country does not provide for the freedom for same-sex parents to marry in its own territory. While countries have often balked at providing this recognition, framing it as a tacit endorsement of same-sex relationships, it functions first and foremost in this situation to protect the rights of the child. There is precedent for extending some recognition even where family relationships are not authorized domestically. Countries in the European Union, for example, must extend residency rights to same-sex spouses of EU citizens. Some countries have adopted limited recognition of same-sex partnerships performed abroad, too, including Armenia and Israel.

Second, states should ensure that frameworks for establishing parentage are inclusive of assisted reproductive technologies and different ways of having children and forming families. The forms that assisted reproductive technology and surrogacy take can vary, but it is a legal option in many parts of the world. As parents pursue different options for conceiving children in different parts of the world, legal frameworks should evolve to ensure that those children’s most fundamental family relationships are recognized and their rights are protected.  

In Ireland, for example, children’s rights advocates have recently called for more streamlined recognition of surrogacy agreements to avoid leaving children in limbo. In New Zealand, the Law Commission is currently undertaking a review of laws regarding surrogacy and legal parentage to ensure that the legal framework preserves the best interest of the child. The United States’ decision to recognize parentage regardless of a biological link between a parent and child is a good example of how laws might be modified to accommodate diverse families.

And finally, states should ensure that citizenship is not passed down in a discriminatory way. In 25 countries, women are not permitted to pass their citizenship down to children on the same basis as men. In a much smaller number of states, unmarried fathers face discrimination as well. This not only constitutes gender discrimination, but can pose a particular problem for same-sex couples and single parents and their children.

Making nationality laws inclusive of diverse family formations isn’t only a matter of good public policy, ensuring families can travel more freely. It’s urgently needed to protect children’s rights, and protect children from harm.


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