So I was reading an interesting email chain between colleagues of mine from the ABA regarding the citizenship rights of a child born overseas as a result an egg donation cycle that occurred here in the United States. For whatever reason, the entire “birther” debate and John McCain’s eligibility to be President (he was born in the Panama Canal Zone ) came to mind and here is my question:

If an American Man and a Kenyan woman used donor sperm to have a son who was born overseas, would that baby be eligible to be President of the United States?

Just a little bit of background. Section 1 of Article Two of the U.S. Constitution states:

No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and been fourteen Years a Resident within the United States.

Three years later, in 1790, the First Congress passed a law that defined children of citizens as those “born beyond the sea, or out of the limits of the United States to be natural born.” Some constitutional scholars believe that this law is unconstitutional and has been superseded by subsequent legislation.

So now jump ahead 3 centuries and we have the ability to have children with the help of an egg donor, sperm donor and/or a gestational carrier. Under the 14th Amendment, it is widely assumed that a child born in the United States to parents who were not legally in the country, would be an American citizen (i.e. anchor babies). This conclusion would be the same if they used donor gametes and/or a surrogate because the birth would have occurred in the United States. But what if an American citizen while living abroad has a baby with the assistance of a non-American sperm donor and whose partner/wife is not an American citizen? Is that baby an American citizen? Is that child eligible to be President of the United States? Or what about an American couple, who with the assistance of an egg donor, sperm donor and surrogate from India, have a baby who is born in India. Is that child entitled to American citizenship? As to the latter question, the answer is likely no. As to the former queries, well I’m not so sure.

So if you think the debate about President Obama and John McCain’s birth status was an issue, wait until some of these political activists starting investigating the genetic origins of our candidates. Given how polarized the political debate has become, it would not come as a surprise if demands are made to have political candidates born outside of the United States, genetically tested to ensure that their parents were American citizens.