Nationality and surrogacy arrangements

Two Latin terms frequently come up in discussions on nationality and citizenship – ius sanguinis and ius soli. These principles refer to acquisition of citizenship by descent and by birth on a particular territory, respectively.

While these principles have worked for centuries, current technological progress raises the question how nationality law is to deal with medically assisted reproductive techniques and changing international conceptions of the family. As for births of children conceived through such techniques, those involving only the biological parents create no special problem and will result in a ius sanguinis acquisition of the nationality of the parents, subject to the normal exceptions the State involved makes on this principle. However, problems may arise if a third person is involved who does not share the nationality of the biological parents, in particular the growing number of cases of children being born through surrogacy arrangements. In those cases, there is a serious risk of statelessness for a child if the State of the surrogate mother’s nationality does not attribute her nationality to the child and the State of the commissioning mother does not attribute its nationality because the commissioning mother did not give birth to the child and is thus not considered by that State as the child’s mother. While there is case law of the European Court of Human Rights on the issue, to date no international treaty provisions deal with the nationality position of children born through surrogate mothers with a different nationality from that of the commissioning parents.

The above also means that term ius sanguinis has become somewhat obsolete. For example, if parentage established abroad between a child born to a surrogate mother with an intending parent is recognised by the State of nationality of this parent, the child must have access to the nationality of the intending parent under the same conditions as a child born to this parent. In other words, it is not the ‘blood’ (sanguis) of a child that matters for the acquisition of nationality, but the legal tie of parentage (filiatio). It would for that reason be considerably better to start using the term ius filiationis instead of the old-fashioned ius sanguinis.

Author: Dr. Olivier Vonk