Defining family in immigration law: Accounting for nontraditional families in citizenship by descent

Yale Law Journal

Volumn 120, Issue 4, 2011, Pages 862-908

  Degtyareva, Victoria ^a  

^a STANFORD UNIVERSITY   (United States)

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EID: 79851487760     PISSN: 00440094     EISSN: None     Source Type: Journal    
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References (213)

1. See 8 U.S.C. §§ 1401-1409 (2006).
2. In 2009, of the 1,130,818 immigrants who entered the United States as permanent residents, 211,859 did so through the family-sponsored preference categories, and 535,554 entered as immediate relatives of U.S. citizens. See OFFICE OF IMMIGRATION STATISTICS, U.S. DEP'T OF HOMELAND SEC., 2009 YEARBOOK OF IMMIGRATION STATISTICS 18 tbl.6 (2010) [hereinafter 2009 YEARBOOK].
3. A familial relationship to a U.S. citizen or permanent resident awards immigrants certain privileges, such as an exemption from certain categories of deportation and the availability of discretionary waivers from deportation. See, e.g., 8 U.S.C. §§ 1227(a)(1)(E)(ii), (a)(1)(H)(i)(I).
4. See, e.g., H.R. REP. NO. 85-1199, pt. 2 (1957), reprinted in 1957 U.S.C.C.A.N. 2016, 2020-21 (explaining that the Immigration and Nationality Act "implements the underlying intentions of our immigration laws regarding the preservation of the family unit").
5. Immigration and Nationality Act, Pub. L. No. 82-414, 66 Stat. 163 (1952) (codified as amended at 8 U.S.C. §§ 1101-1537) [hereinafter INA].
6. See 8 U.S.C. §§ 1101(b), (c).
7. ART refers to fertility treatments in which both eggs and sperm are handled, such as in vitro fertilization (IVF). See DIV. OF REPROD. HEALTH, NAT'L CTR. FOR CHRONIC DISEASE PREVENTION & HEALTH PROMOTION, ASSISTED REPRODUCTIVE TECHNOLOGY (ART), http://www.cdc.gov/ART/ (last updated Feb. 18, 2010) [hereinafter ART REPORT]. However, fertility treatments-such as artificial insemination-raise identical issues in immigration law. For ease of reference, I refer to all fertility treatments in this Note as ART.
8. Some states refer to legal parents as "natural parents." See, e.g., CAL. FAM. CODE § 7611 (West 2009); NEV. REV. STAT. ANN. § 126.045 (LexisNexis 2010). These terms are interchangeable.
9. Bernard Friedland & Valerie Epps, The Changing Family and the U.S. Immigration Laws: The Impact of Medical Reproductive Technology on the Immigration and Nationality Act's Definition of the Family, 11 GEO. IMMIGR. L.J. 429-443 (1997).
10. Id. at 443.
11. See ART REPORT, supra note 7.
12. See id.
13. Darra L. Hofman, "Mama's Baby, Daddy's Maybe:" A State-by-State Survey of Surrogacy Laws and Their Disparate Gender Impact, 35 WM. MITCHELL L. REV. 449-451 (2009).
14. See id.
15. Although adopted children also have nonbiological parents, they do not encounter the same difficulties in immigration and citizenship regulation. Adoption is better established and more accepted than other nontraditional familial practices, and it fits more easily into the traditional two-parent model of the family. Unlike laws concerning other types of nontraditional families, which have only recently begun to develop, see infra Sections III.BC, the first modern adoption law in the United States was passed in 1851, see Ellen Herman, Timeline of Adoption History, THE ADOPTION HIST. PROJECT, http://www.uoregon.edu/~adoption/timeline.html (last updated July 11, 2007). Furthermore, unlike other nontraditional families, all states recognize at least some form of adoption. See, e.g., Adoption Laws by State, ADOPTIVE FAMILIES MAG., 2004, available at http://www.theadoptionguide.com/files/StateAdoptionLaws.pdf. Immigration law has also developed a comprehensive scheme addressing adopted children. Adopted children are included in the definition of "child" used in the INA, meaning that they receive priority status when applying for permanent residence. 8 U.S.C. §§ 1101(b)(1)(E)(i), (c)(1) (2006). The Child Citizenship Act of 2000 allows adopted children to acquire citizenship automatically upon becoming permanent residents. Child Citizenship Act of 2000, Pub. L. No. 106-395, 114 Stat. 1631 (codified at 8 U.S.C. §§ 1431-1433). Immigration law thus directly addresses how adopted children fit into the notion of family.
16. This table does not take into account the marital status of the parties, which many state laws consider when determining paternity. See infra Section III.B, Subsection III.C.2.
17. FED. INTERAGENCY FORUM ON CHILD & FAMILY STATISTICS, AMERICA'S CHILDREN: KEY NATIONAL INDICATORS OF WELL-BEING, 2009, at 93-95 tbl.FAM 1.B (2009), available at http://www.childstats.gov/pdf/ac2009/ac_09.pdf.
18. Jacques De Mouzon et al., INT'L COMM. FOR MONITORING ASSISTED REPROD. TECH., World Collaborative Report on Assisted Reproductive Technology, 2002, 24 HUM. REPROD. 2310-2316 (2009), available at http://humrep.oxfordjournals.org/cgi/reprint/24/9/2310. The 2002 data are the most recent statistics available.
19. Id.
20. Id.
21. ART REPORT, supra note 7.
22. Id.
23. Id.
24. See infra Section III.C.
25. See infra Section III.C.
26. 8 U.S.C. § 1104(a)(3) (2006).
27. Id. § 1252(b)(5)(A).
28. U.S. DEP'T OF STATE, FOREIGN AFFAIRS MANUAL, available at http://www.state.gov/m/a/dir/regs/fam/. Note
29. See 2 id. § 1111.1(a) (2007) ("These directives derive their authority from statutes, Executive orders, other legal authorities, and Presidential directives, such as OMB circulars, and Department policies."). Note
30. 7 id. § 1441.1(a) (2007).
31. See 7 id. § 1131.1 (2009). This section also gives "[d]esignated nationality examiners" the authority to judge citizenship claims, but only "in connection with providing passports and related services." 7 id. § 1131.1-3 (1998).
32. See 7 id. § 1445.9(b) (2007).
33. Id.
34. There is a long-standing doctrine that prohibits federal courts from reviewing consular decisions, at least with respect to admission of aliens into the United States. See, e.g., United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 543 (1950) ("[T]he decision to admit or to exclude an alien may be lawfully placed with the President, who may in turn delegate the carrying out of this function to a responsible executive officer of the sovereign.... The action of the executive officer under such authority is final and conclusive.... [I]t is not within the province of any court, unless expressly authorized by law, to review the determination of the political branch of the Government to exclude a given alien."); Romero v. Consulate of U.S., Barranquilla, Colom., 860 F. Supp. 319, 322 (E.D. Va. 1994) ("[T]he doctrine of nonreviewability of consular officers' visa determinations is essentially without exception."). Courts disagree on whether this doctrine extends beyond the granting of visas. Compare Dong v. Ridge, No. 02 Civ. 7178(HB), 2005 WL 1994090 (S.D.N.Y. Aug. 18, 2005) (declining to review consular's determination that petitioner was not a child for immigration purposes under the consular nonreviewability doctrine), with Fiallo v. Levi, 406 F. Supp. 162, 165 (E.D.N.Y. 1975) ("We will not extend consular nonreviewability, insofar as that rule has been recognized, beyond the actual grant or denial of a visa."). The INA and the FAM do not contain any provision for review of citizenship determinations made while abroad. Cf. 8 U.S.C. § 1252(b)(5) (2006) (permitting judicial review of citizenship claims raised in removal proceedings only); 7 FOREIGN AFFAIRS MANUAL § 1445.9(b) (2007) (permitting administrative review of consular decisions without any mention of judicial review).
35. See 8 U.S.C. § 1229a(a)(1).
36. See id. §§ 1229a(c)(6)-(7).
37. See About the Office, EXEC. OFFICE FOR IMMIGRATION REVIEW, U.S. DEP'T OF JUSTICE, http://www.justice.gov/eoir/orginfo.htm (last visited Sept. 6,2010).
38. See 8 U.S.C. § 1252(b)(5). If the court of appeals finds no "genuine issue of material fact about the petitioner's nationality," it can adjudicate the nationality claim itself. Id. § 1252(b)(5)(A). If, on the other hand, it determines that an issue of material fact does exist, the court must transfer the claim to a district court. Id. § 1252(b)(5)(B).
39. See id. § 1252(a)(5).
40. Id. § 1409(c).
41. Id. § 1409(a)(1).
42. Id. § 1401.
43. The Ninth Circuit addressed and rejected the possibility of giving Chevron deference to the Department of State in its interpretation of the INA. In Scales v. INS, 232 F.3d 1159 (9th Cir. 2000), the respondent argued that Congress has implicitly given the Department of State authority to fill in the statutory gap and that, based on the Supreme Court's decision in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), courts must defer to the agency interpretation provided that it is reasonable. Brief for Respondent at 16, Scales v. INS, 232 F.3d 1159 (9th Cir. 2000) (No. 97-70915). The Court rejected this argument because the Department of State is charged only with determining the citizenship of persons outside the United States, while the petitioner was inside the United States. Scales, 232 F.3d at 1165. The Court also noted that the Foreign Affairs Manual, in which the Department interprets these provisions, is not the type of document that warrants Chevron deference: "[I]nterpretations contained in policy statements, agency manuals, and enforcement guidelines... do not warrant Chevron-style deference." Id. at 1166 (quoting Christensen v. Harris Cnty., 529 U.S. 576 (2000)).
44. The Fifth Circuit considered a similar factual scenario but did not reach the question of whether the Ninth Circuit's interpretation was correct because it found that, unlike in the Ninth Circuit case, the petitioner was born out of wedlock. Marquez-Marquez v. Gonzales, 455 F.3d 548, 559 (5th Cir. 2006).
45. As discussed in Section II.A, removal proceedings and citizenship claims raised during those proceedings are adjudicated first in front of an immigration judge. An applicant may appeal an unfavorable decision by the immigration judge to the BIA. If the BIA enters a final order of removal, the applicant may in turn appeal that decision to a federal circuit court. See supra notes 36-39 and accompanying text. In 2008, only approximately one-third of BIA decisions were appealed to the federal courts. See COMM'N ON IMMIGRATION, AM. BAR ASS'N, REFORMING THE IMMIGRATION SYSTEM: PROPOSALS TO PROMOTE INDEPENDENCE, FAIRNESS, EFFICIENCY, AND PROFESSIONALISM IN THE ADJUDICATION OF REMOVAL CASES ES-5 (2010), available at http://www.abanet.org/media/nosearch/immigration_reform_executive_summar y_012510.pdf [hereinafter REFORMING THE IMMIGRATION SYSTEM].
46. See Solis-Espinoza v. Gonzales, 401 F.3d 1090, 1092 (9th Cir. 2005) (overruling a BIA decision that held a child is born in wedlock only if his biological parents are married); Scales, 232 F.3d at 1165 (overruling a BIA decision that relied on the FAM and held that a blood relationship is always necessary for children born in wedlock).
47. See, e.g., In re Guzman-Gomez, 24 I. & N. Dec. 824, 826 n.3 (B.I.A. May 8, 2009) ("We have no occasion to opine as to the merits of [Scales and Solis-Espinoza], which arose in the context of ?acquired citizenship,' rather than ?derivative citizenship,' at issue here."); In re Anderson, No. A035 189 461, 2009 WL 263034, at 2 (B.I.A. Jan. 21, 2009) (distinguishing the case from Ninth Circuit precedent because the respondent's alien mother and purported U.S. citizen father were not married at the time of his birth); In re Martinez-Madera, No. A14 647 093, 2006 WL 2008286, at 2 (B.I.A. May 30, 2006) (same); In re Siman, No. A41 169 426, 2006 WL 901338, at 2 (B.I.A. Mar. 3, 2006) (same).
48. While removal proceedings represent only about seventeen percent of the cases handled by all federal courts of appeals combined, these cases make up between thirty-five to forty percent of the Ninth Circuit's docket. See REFORMING THE IMMIGRATION SYSTEM, supra note 45, at ES-5. In fact, the Ninth Circuit and the Second Circuit have the largest immigration dockets of any federal circuit.
49. Id.
50. See Scales, 232 F.3d at 1166.
51. See id. at 1164.
52. See 7 FOREIGN AFFAIRS MANUAL § 1131.4-1(a) (1998).
53. 7 id. § 1131.4-1(c) (1998).
54. Scales, 232 F.3d at 1164.
55. See id. 55. 401 F.3d 1090 (9th Cir. 2005).
56. See id. at 1091-92.
57. Id. at 1094.
58. See id.
59. Other federal courts have not addressed this question.
60. 7 FOREIGN AFFAIRS MANUAL § 1131.4-2(a) (1998).
61. 7 id. § 1131.4-2(b) (1998).
62. Id.
63. See 7 id. §§ 1131.4-2(a)-(b) (1998) (determining "born in wedlock" for the purpose of surrogacy agreements).
64. See 7 id. § 1131.4-2(b) (1998).
65. See supra text accompanying notes 53-59.
66. See 7 FOREIGN AFFAIRS MANUAL §§ 1131.4-2(a)-(b) (1998).
67. See Solis-Espinoza v. Gonzales, 401 F.3d 1090, 1091-92 (9th Cir. 2005); Scales v. INS, 232 F.3d 1159, 1161-62 (9th Cir. 2000).
68. See Solis-Espinoza, 401 F.3d at 1094; Scales, 232 F.3d at 1166.
69. See U.S. CONST. art. I, § 8, cl. 4 (giving Congress the power "to establish an uniform Rule of Naturalization"). The regulation of immigration is intertwined with foreign affairs because it requires the U.S. government to interact with citizens of other nations. See, e.g., INS v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999) ("[W]e have recognized that Judicial deference to the Executive Branch is especially appropriate in the immigration context where officials ?exercise especially sensitive political functions that implicate questions of foreign relations.'" (quoting INS v. Abudu, 485 U.S. 94, 110 (1988))). Any decisions that the United States makes concerning other nationals may affect its relations with other countries. See, e.g., Dick Clark, Foreword to ELIZABETH HULL, WITHOUT JUSTICE FOR ALL: THE CONSTITUTIONAL RIGHTS OF ALIENS, at ix-x (1985) (describing the use of asylum and refugee law to affect international relations). As with other areas that concern foreign affairs, such as signing treaties or declaring war, it is beneficial to have a uniform immigration policy that represents the position of the United States as a whole. Substantial delays in processing visa applications from certain countries make gaining entry into the United States difficult for noncitizens even if a family relationship is established.
70. See, e.g., U.S. DEP'T OF STATE, VISA BULLETIN FOR DECEMBER 2009, http://www.travel.state.gov/visa/bulletin/bulletin_4587.html.
71. See 7 FOREIGN AFFAIRS MANUAL § 1131.1 (2009) (giving consular officers the authority to determine the validity of citizenship-by-descent claims brought by individuals abroad).
72. The Foreign Affairs Manual requires only that consular officers notify applicants of the reasons for their decisions; the decisions are not published. See 7 id. § 1445.8(c) (2009);
73. Lenni B. Benson, Breaking Bureaucratic Borders: A Necessary Step Toward Immigration Law Reform, 54 ADMIN. L. REV. 203-322 (2002) (calling for more publication of administrative decisions and noting that "[t]he Department of State does not publish any denials or opinions concerning individual cases and the decisions of individual consular officers are generally insulated from both administrative and judicial review").
74. See, e.g., 2009 YEARBOOK, supra note 2.
75. See supra notes 17-23 and accompanying text.
76. DEBORA L. SPAR, THE BABY BUSINESS: HOW MONEY, SCIENCE, AND POLITICS DRIVE THE COMMERCE OF CONCEPTION 85-88 (2006) (providing an overview of the international surrogacy market);
77. Usha Rengachary Smerdon, Crossing Bodies, Crossing Borders: International Surrogacy Between the United States and India, 39 CUMB. L. REV. 15 (2009) (discussing the growth of the international surrogacy market in India and providing an explanation for international surrogacy's increasing attractiveness to couples unable to reproduce);
78. Antony Barnett & Helena Smith, Cruel Cost of the Human Egg Trade, OBSERVER (London), Apr. 30, 2006, at 6 (describing the prevalence of "fertility tourism" in Europe).
79. See 8 U.S.C. § 1152(a)(2) (2006).
80. See id. § 1151(b)(2)(A)(i).
81. See id. § 1153(a)(2)(A).
82. See id. §§ 1151(a)(1)-(2)
83. 2009 YEARBOOK, supra note 2, at 18 tbl.6.
84. Titles I and II of the INA deal with general provisions and immigration; Title III deals with nationality and naturalization. See 8 U.S.C. §§ 1101-1537.
85. Id. §§ 1101(b)(1), (c)(1).
86. See supra notes 76-80 and accompanying text (discussing the various immigration benefits available to the children of U.S. citizens and permanent residents).
87. 8 U.S.C. § 1101(b)(1)(C).
88. Id. § 1101(b)(1)(D).
89. Id. § 1101(b)(1)(E)(i). An adopted person may fall under the definition of child without meeting the legal custody and residency requirements if, among other things, "the sole or surviving parent is incapable of providing the proper care." Id. § 1101(b)(1)(F)(i). This provision suggests that, when the child's biological and bona fide parent-child relationships are not with the same person(s), the holder of the bona fide parent-child relationship will prevail.
90. Id. § 1101(c)(1).
91. The blood relationship requirement was added to § 1409 in 1986. See Immigration and Nationality Act Amendments of 1986, Pub. L. No. 99-653, § 13, 100 Stat. 3655, 3657.
92. Administration of the Immigration and Nationality Laws: Hearing on H.R. 4823, H.R. 4444, and H.R. 2184 Before the Subcomm. on Immigration, Refugees, & Int'l Law of the H. Comm. on the Judiciary, 99th Cong. 120 (1986) (statement of Richard E. Norton, Associate Comm'r, Examinations, U.S. Immigration & Naturalization Service).
93. Id. at 150 (testimony of the Hon. Joan M. Clark, Assistant Secretary of State for Consular Affairs).
94. Smith v. United States, 508 U.S. 223, 228 (1993).
95. See, e.g., Leocal v. Ashcroft, 543 U.S. 1, 9-10 (2004) (looking to the ordinary and natural meaning of "use of physical force against" another to determine what qualifies as an aggravated felony for immigration purposes).
96. See, e.g., Kungys v. United States, 485 U.S. 759, 767-72 (1988) (looking to the common law and federal criminal law for the definition of "material").
97. See, e.g., In re Burrus, 136 U.S. 586, 593-94 (1890) ("The whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the states, and not to the laws of the United States."). But see Judith Resnik, Categorical Federalism: Jurisdiction, Gender, and the Globe, 111 YALE L.J. 619, 644-56 (2001) (discussing the prevalence of federal family law).
98. Kerry Abrams, Immigration Law and the Regulation of Marriage, 91 MINN. L. REV. 1625-1708 (2007).
99. See, e.g., Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 12 (2004) ("One of the principal areas in which this Court has customarily declined to intervene is the realm of domestic relations. ").
100. UNIF. PARENTAGE ACT (2000) (amended 2002), 9B U.L.A. 4 (Supp. 2010).
101. See A Few Facts About the Uniform Parentage Act, UNIF. LAW COMM'RS, THE NAT'L CONFERENCE OF COMM'RS ON UNIF. STATE LAWS, http://www.nccusl.org/Update/uniformact_factsheets/uniformacts-fs-upa.as p (last visited Sept. 28, 2010); see also UNIF. PARENTAGE ACT (2000) references and annots. (amended 2002) (2010 Electronic Pocket Part) (providing statutory citations for each state's Uniform Parentage Act).
102. UNIF. PARENTAGE ACT (1973), 9B U.L.A. 377 (2001).
103. Those states are California, Colorado, Hawaii, Illinois, Kansas, Minnesota, Missouri, Montana, Nevada, New Jersey, Ohio, and Rhode Island. UNIF. PARENTAGE ACT (1973), 9B U.L.A. 86 (Supp. 2010). In 2000, the Uniform Parentage Act of 1973 was in effect in nineteen states. Id. at 377. However, after the passage of the 2000 UPA, several of those states abandoned the 1973 UPA in order to adopt the newer version. UNIF. PARENTAGE ACT (2000) prefatory note (amended 2002), 9B U.L.A. 5-7 (Supp. 2010). Many other states have adopted significant portions of the 1973 UPA, but have never adopted the Act in full. Id. 101. Of the 556,032 apprehensions by the U.S. Border Patrol in 2009, 292,232 (approximately 53%) took place in California or Texas. See 2009 YEARBOOK, supra note 2, at 93 tbl.35. Of the 21,887 arrests by the U.S. Immigration and Customs Enforcement Office of Investigations, 6062 (approximately 28%) occurred in California and Texas. See id.
104. See UNIF. PARENTAGE ACT (2000) § 204 (amended 2002), 9B U.L.A. 23-24 (Supp. 2010);
105. UNIF. PARENTAGE ACT (1973) § 4, 9B U.L.A. 393-94 (2001). For a survey of state law regarding presumptions of paternity, see CHILD WELFARE INFORMATION GATEWAY, U.S. DEP'T OF HEALTH & HUMAN SERVS., THE RIGHTS OF PRESUMED (PUTATIVE) FATHERS: SUMMARY OF STATE LAW, available at http://www.childwelfare.gov/systemwide/laws_policies/statutes/putativeal l.pdf, which provides information current through October2007.
106. See UNIF. PARENTAGE ACT (2000) § 204(a)(1) (amended 2002), 9B U.L.A. 23 (Supp. 2010); UNIF. PARENTAGE ACT (1973) § 4(a)(1), 9B U.L.A. 393 (2001). The Department of State's FAM acknowledges that such a presumption exists in family law but rejects that it applies to immigration. See 7 FOREIGN AFFAIRS MANUAL § 1131.4-1(c) (1998). The Department of State fails to offer any justification for why the presumption should not apply in the immigration context, stating simply that an "actual blood relationship to a U.S. citizen parent is required." Id.
107. UNIF. PARENTAGE ACT (2000) § 204(a)(4) (amended 2002), 9B U.L.A. 23-24 (Supp. 2010); UNIF. PARENTAGE ACT (1973) § 4(a)(3), 9B U.L.A. 393-94 (2001).
108. UNIF. PARENTAGE ACT (2000) § 204(a)(5) (amended 2002), 9B U.L.A. 24 (Supp. 2010);
109. UNIF. PARENTAGE ACT (1973) § 4(a)(4), 9B U.L.A. 394 (2001).
110. UNIF. PARENTAGE ACT (2000) § 204(b) (amended 2002), 9B U.L.A. 24 (Supp. 2010); UNIF. PARENTAGE ACT (1973) § 4(b), 9B U.L.A. 394 (2001).
111. NIF. PARENTAGE ACT (2000) § 608(a)(2) (amended 2002), 9B U.L.A. 54 (Supp. 2010).
112. See id. §§ 608(b)(2), (4).
113. Id. § 608 cmt.
114. See supra note 101 and accompanying text.
115. California Uniform Parentage Act of 1975, Cal. Stat. 3196 (codified as amended at CAL. FAM. CODE §§ 7600-7730 (West 2009)).
116. See In re Jerry P., 116 Cal. Rptr. 2d 123 (Ct. App. 2002).
117. See id. at 131.
118. 823 P.2d 1216, 1236 (Cal. 1992).
119. Id.
120. See In re Jerry P., 116 Cal. Rptr. 2d at 141.
121. Id. at 128-30 (interpreting California Family Code section 7611-the substantive equivalent of section 4(a) of the Uniform Parentage Act of 1973-to allow a nonbiological father to assume presumed father status).
122. Id. at 128 (noting that, according to the California Welfare and Institutions Code, only presumed fathers are entitled to reunification services and custody of the child).
123. Id. at 141.
124. 117 P.3d 660 (Cal. 2005).
125. See id. at 670.
126. Id. at 668 (quoting In re Salvador M., 4 Cal. Rptr. 3d 705, 708 (Ct. App. 2003)).
127. See supra notes 98-110 and accompanying text.
128. For a discussion of other problematic provisions, see supra text accompanying notes 76-80.See 8 U.S.C. § 1101(b)(1)(E)(i) (2006) (defining child as "a child adopted while under the age of sixteen years if the child has been in the legal custody of, and has resided with, the adopting parent or parents for at least two years or if the child has been battered or subject to extreme cruelty by the adopting parent or by a family member of the adopting parent residing in the same household"); id. § 1101(c)(1) ("The term ?child'... includes... a child adopted in the United States, if such... adoption takes place before the child reaches the age of 16 years..., and the child is in the legal custody of the... adopting parent or parents at the time of such... adoption.").
129. Abandonment does not automatically terminate parental rights. In furtherance of the best interests of the child policy, if an alternate intended parent exists, the abandoning biologicalparent may lose parental rights. If there is no such alternative, however, it is unlikely that the abandoning biological parent would be able to terminate parental rights. In fact, many states and federal law make it a criminal offense to abandon a child or to fail to pay child support. See, e.g., Child Support Recovery Act of 1992, Pub. L. No. 102-521, 106 Stat. 3403 (codified at 18 U.S.C. § 228(d)(1)(B) (2006)) (making it a federal offense willfully to fail to pay child support for a child residing in another state if the support remains unpaid for one year or longer and is greater than $5000).
130. See, e.g., UNIF. PARENTAGE ACT (2000) § 204(a)(1) (amended 2002), 9B U.L.A. 23 (Supp. 2010); UNIF. PARENTAGE ACT (1973) § 4(a)(1), 9B U.L.A. 393 (2001).
131. See 7 FOREIGN AFFAIRS MANUAL § 1131.4-1(c) (1998).
132. See supra notes 104-105 and accompanying text.
133. Section 1409 also requires that the father agrees in writing to support the child financially until the child is eighteen years old and that the child is legitimated under the law of the father's residence, the father acknowledges paternity in writing under oath, or paternity is declared by a court. 8 U.S.C. §§ 1409(a)(3)-(4) (2006). These requirements, especially those that require voluntary acknowledgement of paternity and consent to provide support, serve to establish a bona fide parent-child relationship.
134. See, e.g., Nguyen v. INS, 533 U.S. 53, 64-65 (2001) (interpreting § 1409 as providing an opportunity for the parent and child to develop an interpersonal relationship).
135. See, e.g., Stephanie Saul, Building a Baby, with Few Ground Rules, N.Y. TIMES, Dec. 13, 2009, at A1 (discussing some of the ethical concerns associated with surrogacy and describing a few examples of surrogacy agreements that have raised these concerns).
136. See UNIF. PARENTAGE ACT (1973) § 5(a), 9B U.L.A. 407-08 (2001).
137. See id. § 5(b).
138. See supra notes 106-109 and accompanying text.
139. See UNIF. PARENTAGE ACT (1973) § 5(a), 9B U.L.A. 407-08 (2001).
140. UNIF. PARENTAGE ACT (2000) § 703 (amended 2002), 9B U.L.A. 70 (Supp. 2010).
141. See id. § 702.
142. See id. § 703.
143. See supra notes 98, 100 and accompanying text for a list of the states that have adopted these two Acts. Oklahoma did not adopt Article 7 of the 2000 Uniform Parentage Act, which governs children born through ART.
144. See UNIF. STATUS OF CHILDREN OF ASSISTED CONCEPTION ACT § 3, 9C U.L.A. 370 (1988) ("[T]he husband of a woman who bears a child through assisted conception is the father of the child, notwithstanding a declaration of invalidity or annulment of the marriage obtained after the assisted conception, unless within two years after learning of the child's birth he commences an action in which the mother and child are parties and in which it is determined that he did not consent to the assisted conception."). Because Virginia has not adopted either uniform parentage act, this brings the total number of states who treat children born through the first category of ART as the legal children of their intended fathers regardless of a blood relationship up to at least twenty-one.
145. See, e.g., ARIZ. REV. STAT. ANN. § 25-501(b) (2007); ARK. CODE ANN. § 9-10-201(a) (2009); CONN. GEN. STAT. ANN. § 45a-774 (West 2004); FLA. STAT. ANN. § 742.11(1) (West 2010); GA. CODE ANN. § 19-7-21 (2010); IDAHO CODE ANN. § 39-5405(3) (2002); LA. CIV. CODE ANN. art. 188 (2007); MD. CODE ANN., EST. & TRUSTS § 1-206(b) (LexisNexis 2001); MASS. GEN. LAWS ANN. ch. 46, § 4B (West 2009); N.Y. DOM. REL. LAW § 73(1) (McKinney 1999); N.C. GEN. STAT. ANN. § 49A-1 (2009); OR. REV. STAT. § 109.243 (2009); TENN. CODE ANN. § 68-3-306 (2001).
146. See UNIF. PARENTAGE ACT (2000) § 106 (amended 2002), 9B U.L.A. 19-20 (Supp. 2010); UNIF. PARENTAGE ACT (1973) § 21, 9B U.L.A. 494 (2001).
147. See UNIF. STATUS OF CHILDREN OF ASSISTED CONCEPTION ACT § 2, 9C U.L.A. 370 (1988). The National Conference of Commissioners comment to this section explains that the section is intended to address situations in which "technology enabl[es] a woman to give birth to a child to which she is not genetically related." Id. § 2 cmt.
148. See supra Part I.
149. 401 F.3d 1090 (9th Cir. 2005).
150. See 7 FOREIGN AFFAIRS MANUAL § 1131.4-2(b) (1998).
151. 7 id. § 1131.4-2(c).
152. See UNIF. STATUS OF CHILDREN OF ASSISTED CONCEPTION ACT prefatory note, 9C U.L.A. 365 (1988); id. at Alternative A, 373-82; id. at Alternative B, 383.
153. See A Few Facts About the Uniform Status of Children of Assisted Conception Act, UNIF. LAW COMM'RS, NAT'L CONFERENCE OF COMM'RS ON UNIF. STATE LAWS, http://www.nccusl.org/Update/uniformact_factsheets/uniformacts-fs-uscaca .asp (last visited Oct. 5, 2010).
154. See UNIF. PARENTAGE ACT (2000) §§ 801(a)(2)-(3) (amended 2002), 9B U.L.A. 76-77 (Supp. 2010).
155. See id. art. 8 cmt.
156. Surrogacy: Laws, HUMAN RIGHTS CAMPAIGN, http://www.hrc.org/issues/parenting/surrogacy/surrogacy_laws.asp (last visited Oct. 25, 2010) (giving a summary of state surrogacy laws). The discussion of surrogacy state law in this Note is informed by information provided by the Human Rights Campaign.
157. ARK. CODE ANN. § 9-10-201 (2009) (allowing all gestational and traditional surrogacy); FLA.STAT. ANN. § 63.212 (West 2005) (permitting gestational and traditional surrogacy and treating traditional surrogacy as "preplanned adoption agreement[s]"); 750 ILL. COMP. STAT. ANN. 47 (West Supp. 2008) (allowing only gestational surrogacy and requiring that one of the gametes be donated by the intended parents); NEV. REV. STAT. ANN. § 126.045 (LexisNexis 2010) (permitting only gestational surrogacy in which both gametes are donated by the intended parents); N.H. REV. STAT. ANN. § 168-B:1-:32 (LexisNexis 2010) (allowing gestational and traditional surrogacy and requiring that one of the gametes be donated by the intended parents); N.D. CENT. CODE § 14-18-08 (2009) (allowing estational surrogacy only and requiring that both gametes be provided by the intended parents); TENN. CODE ANN. § 36-1-102(48) (2010) (allowing gestational surrogacy if both gametes are provided by the intended parents and allowing traditional surrogacy if the sperm is provided by the intended father); TEX. FAM. CODE ANN. §§ 160.754,.762 (West 2008) (allowing only gestational surrogacy but not requiring that either gamete be provided by the intended parents); UTAH CODE ANN. § 78B-15-801 (LexisNexis 2009) (allowing only gestational surrogacy and requiring that one gamete be provided by the intended parents); VA. CODE ANN. §§ 20-156, -159 (2008) (allowing all gestational and traditional surrogacy); WASH. REV. CODE ANN. § 26.26.101 (West 2005) (permitting only gestational surrogacy and not requiring that either gamete be donated by the intended parents).
158. Hofman, supra note 13, at 460-67 (providing an overview of the procedures intended parents must go through to receive legal parent status in each of the eleven states).
159. See IOWA CODE ANN. § 710.11 (West 2003) (noting that the criminalization of purchasing or selling human beings does not apply to surrogacy agreements).
160. See OR. REV. STAT. § 163.537(2)(d) (2009) (listing "fees for services in an adoption pursuant to a surrogacy agreement" as an exemption from the prohibition on buying or selling a person).
161. Rhode Island prohibits the cloning of human beings. However, the statute states that it does not prohibit "[i]n vitro fertilization... or other medical procedures used to assist a woman in becoming or remaining pregnant." R.I. GEN. LAWS § 23-16.4-2(c)(2)(i) (2008). In vitro fertilization is the procedure employed in gestational surrogacy, and thus this statute may be read as allowing gestational surrogacy agreements.
162. See W. VA. CODE ANN. § 48-22-803(e)(3) (LexisNexis 2009) (excluding "[f]ees and expenses included in any agreement in which a woman agrees to become a surrogate mother" from the prohibition against purchasing or selling a child).
163. Wisconsin law holds that, in the case of a child born to a surrogate mother, the surrogate mother will be placed on the child's birth certificate unless the court determines who has parental rights over the child. After the court's determination, a new birth certificate will be issued. WIS. STAT. ANN. § 69.14(h) (West 2003).
164. Illinois, Texas, Utah, and Washington fall into this category. Illinois and Utah require one gamete to be donated by the intended parents. Nevada and North Dakota are exceptions in that they require both gametes to be provided by the intended parents. See supra note 154.
165. See supra notes 145-148 and accompanying text.
166. These states are Illinois, New Hampshire, Tennessee, and Utah. Again, Nevada and North Dakota require that the intended parents donate both gametes. See supra note 154.
167. Saul, supra note 132.
168. Id. ("This is the main problem with commercialization, seeing children as a consumer product. This is especially true when there is no genetic connection with the child.... It really does treat children like commodities. Like pets." (quoting George J. Annas, Chair of the Department of Health Law, Bioethics & Human Rights at Boston University School of Public Health)).
169. See Brasfield v. Brasfield, 679 So. 2d 1091 (Ala. Civ. App. 1996) (awarding custody of a child born through a traditional surrogacy agreement to the intended mother, who was not biologically related to the child).
170. See Johnson v. Calvert, 851 P.2d 776 (Cal. 1993) (holding that in a gestational surrogacy agreement the intended parents are the legal parents).
171. See Doe v. Doe, 710 A.2d 1297 (Conn. 1998) (ruling that, in a custody dispute over a child born through a traditional surrogacy agreement, the intended, nonbiological mother's role in raising the child was sufficient to give her legal parent status because the court thought it was in the child's best interests).
172. See DeBernardi v. Steve B.D., 723 P.2d 829, 834 (Idaho 1986) (holding that biological relationships are not the determining factor for legal parenthood and that "in the absence of fraud, duress, or undue influence" consent to termination of parental rights by the biological mother in a surrogacy contract is final and irrevocable).
173. See Surrogate Parenting Assocs. v. Commonwealth ex rel. Armstrong, 704 S.W.2d 209, 213 (Ky. 1986) (treating surrogacy agreements as all other custody contracts, which "are voidable, not illegal and void").
174. See Culliton v. Beth Israel Deaconess Med. Ctr., 756 N.E.2d 1133 (Mass. 2001) (granting a request to list the biological, intended parents as the parents on a birth certificate of a child born through a gestational surrogacy agreement).
175. See P.G.M. v. J.M.A., No. A07-452, 2007 Minn. App. Unpub. LEXIS 1189 (Ct. App. Dec. 11, 2007) (denying the parental rights of the surrogate mother and holding that the biological, intended father is the natural father of the child).
176. New Jersey courts allow only uncompensated, gestational surrogacy agreements, in which the surrogate mother is not the biological mother. See In re Baby M., 537 A.2d 1227 (N.J. 1988) (invalidating a compensated, traditional surrogacy agreement); A.H.W. v. G.H.B., 772 A.2d 948, 953 (N.J. Super. Ct. Ch. Div. 2000) (allowing uncompensated, gestational surrogacy agreements).
177. See J.F. v. D.B., 879 N.E.2d 740 (Ohio 2007) (holding that a gestational surrogacy agreement did not violate public policy and that the gestational mother had no parental rights).
178. See In re Adoption of Baby A, 877 P.2d 107 (Or. Ct. App. 1994) (upholding a surrogacy agreement in which payment to the surrogate mother exceeded pregnancy-related expenses). Oregon statutes also suggest that surrogacy agreements are enforceable. See OR. REV. STAT. § 163.537(d) (2009) (listing "fees for services in an adoption pursuant to a surrogacy agreement" as an exemption from the prohibition on buying or selling a person).
179. See J.F. v. D.B., 897 A.2d 1261 (Pa. Super. Ct. 2006) (ruling that a surrogate mother did not have standing to seek custody of the children and reversing a lower court ruling granting her custody, but explicitly refraining from ruling on the validity of surrogacy agreements).
180. See Mid-South Ins. Co. v. Doe, 274 F. Supp. 2d 757 (D.S.C. 2003) (finding that a child born to a surrogate mother was not the legal child of the surrogate's husband based on the terms of the surrogacy agreement).
181. Vermont implied that surrogacy agreements were enforceable in Baker v. State, 744 A.2d 864 (Vt. 1999), a case dealing with same-sex marriage. One of the arguments that the State presented for prohibiting same-sex marriage was "minimiz[ing] the legal complications of surrogacy contracts and sperm donors." Id. at 884. This argument implies that the State accepts surrogacy agreements made by heterosexual couples. The court in Baker extended the rights afforded to heterosexual couples to same-sex couples, which arguably includes the right to enter into surrogacy agreements. The court noted that "[t]he State does nothing to discourage technologically assisted reproduction by individuals or opposite-sex couples."
182. Id. at 910.
183. The issue of surrogacy has not been addressed in Alaska, Colorado, Georgia, Hawaii, Maine, Mississippi, Missouri, Montana, North Carolina, South Dakota, and Wyoming. See HUMAN RIGHTS CAMPAIGN, supra note 153. The law in Arizona is also unclear, even though both the legislature and one court have addressed the issue. State law provides that surrogacy agreements are invalid, that the surrogate mother is the legal mother, and that there is a rebuttable presumption that the surrogate mother's husband is the legal father. See ARIZ. REV. STAT. ANN. § 25-218 (West 2007). However, an Arizona court of appeals held that the provision of the statute granting legal parent status to the surrogate mother violates the Equal Protection Clause. See Soos v. Superior Court ex rel. County of Maricopa, 897 P.2d 1356 (Ariz. Ct. App. 1994). It is unclear whether the court struck down the entire statute or only one provision.
184. Nebraska and New Mexico statutorily prohibit compensated surrogacy agreements. See NEB. REV. STAT. § 25-21,200 (2008); N.M. STAT. ANN. § 32A-5-34(f) (2009). In Maryland and Oklahoma, the state attorneys general have issued opinions that compensated agreements are prohibited under the applicable statute. See 85 Op. Md. Att'y Gen. 348 (2000); Op. Okla. Att'y Gen. No. 83-162 (1983). Louisiana prohibits compensated traditional surrogacy agreements but makes no mention of either uncompensated agreements or gestational surrogacy agreements. See LA. REV. STAT. ANN. § 9:2713 (2005).
185. See D.C. CODE § 16-402 (LexisNexis 2001); IND. CODE ANN. § 31-20-1-1 (LexisNexis 2007); MICH. COMP. LAWS ANN. § 722.855 (West 2002); N.Y. DOM. REL. LAW § 122 (McKinney 1999).
186. See Hawkins v. Frye, No. 34,248, 1988 Del. Fam. Ct. LEXIS 31, at 7 (May 25, 1988) (holding that a "contractual agreement to terminate parental rights... is against the public policy of this State and may not be enforced by the Court").
187. See 54 Op. Kan. Att'y Gen. No. 82-150 (1982).
188. See DEL. CODE ANN. tit. 13, §§ 702-703 (2009); KAN. STAT. ANN. § 23-129 (2009); N.Y. DOM. REL. LAW § 73(1) (McKinney 1999).
189. See supra note 103 and accompanying text.
190. See supra notes 133, 142 and accompanying text.
191. See Elisa B. v. Superior Court, 117 P.3d 660 (Cal. 2005).
192. See UNIF. PARENTAGE ACT (2000) § 703 (amended 2002), 9B U.L.A. 70 (Supp. 2010).
193. See Friedland & Epps, supra note 9, at 441.
194. 232 F.3d 1159 (9th Cir. 2000).
195. 401 F.3d 1090 (9th Cir. 2005).
196. Weldon E. Havins & James J. Dalessio, The Ever-Widening Gap Between the Science of Artificial Reproductive Technology and the Laws Which Govern That Technology, 48 DEPAUL L. REV. 825 (1999).
197. See Friedland & Epps, supra note 9, at 441.
198. Id. at 444.
199. See Jacob v. Shultz-Jacob, 923 A.2d 473 (Pa. Super. Ct. 2007); A.A. v. B.B. (2007), 83 O.R. 3d 561 (Can. Ont. C.A.).
200. Elizabeth Marquardt, When 3 Really Is a Crowd, N.Y. TIMES, July 16, 2007, at A13 (discussing the problems that arise from decisions awarding three people legal parent status, especially when the parties live in different households);
201. Stanley Kurtz, Heather Has 3 Parents, NAT'L REV. ONLINE (Mar. 12, 2003, 9:00 AM), http://www.nationalreview.com/articles/206153/heather-has-3-parents/stan ley-kurtz
202. Once parental responsibilities are parceled out to more than two people-even to someone living outside the household-it becomes that much easier for any one parent to shirk his or her responsibilities. The very notion that parents can be added and subtracted at will tends to cut against the feeling of special responsibility for a given child.
203. Friedland & Epps, supra note 9, at 442.
204. See, e.g., Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 12 (2004) ("One of the principal areas in which this Court has customarily declined to intervene is the realm of domestic relations."); Ankenbrandt v. Richards, 504 U.S. 689, 703 (1992) ("[T]he domestic relation exception... divests the federal courts of power to issue divorce, alimony and child custody decrees."). But see Resnik, supra note 94, at 642-56 (arguing that federal courts often engage in making family law).
205. See supra note 69.
206. Cristina M. Rodríguez, The Significance of the Local in Immigration Regulation, 106 MICH. L. REV. 567-572 (2008).
207. See Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886) ("The [F]ourteenth [A]mendment to the [C]onstitution is not confined to the protection of citizens."); see also Plyler v. Doe, 457 U.S.
208. 210 (1982) (noting that illegal aliens had long been recognized as "persons" under the Constitution and are thus guaranteed due process under the Fifth and Fourteenth Amendments).
209. See Friedland & Epps, supra note 9, at 442.
210. See id.
211. Some scholars argue that the federal government already regularly makes family law, including in the immigration context. See, e.g., Abrams, supra note 95 (detailing how federal immigration law regulates marriage); Resnik, supra note 94, at 642-56 (describing federal family law generally)
212. David B. Thronson, Custody and Contradictions: Exploring Immigration Law as Federal Family Law in the Context of Child Custody, 59 HASTINGS L.J. 453 (2008) (explaining how the regulation of immigration and child custody constitutes federal family law).
213. On this account, having the federal government legislate a definition of family would not be far outside of the scope of its current lawmaking practices. 205. See Friedland & Epps, supra note 9, at 442.