The US State Department has issued a new policy in relation to children born abroad through assisted reproductive technologies.

The previous policy required that the mother must have a genetic connection to the child in order to qualify as a parent to enable them to obtain immigration benefits. Under the new policy, gestational mothers (i.e. the birth mother) who are the legal parent of the child will be regarded in the same way as genetic mothers in terms of immigration benefits.

Saliently, the policy change means that the law will recognise the definition of “child” to mean the child of a genetic or gestational parent who is also the legal parent at the time of the child’s birth.

The federal government has also confirmed that the policy will also be available retrospectively, thus enabling hundreds of individuals to claim legal and immigration benefits when their application would have been denied previously. Individuals in those circumstances must be able to provide evidence that they meet the relevant statutory requirements.

Whilst this is a welcomed change in the law, individuals considering entering a surrogacy arrangement should always seek appropriate immigration and family law legal advice beforehand.

To read the full policy document click here.