Reproductive Conformity in Family as Nation

Abstract

Legitimation represents a widening chasm at the intersection of immigration and family law. Agencies’ and courts’ persistent misguided reliance on biology as a paramount dispositive factor in determining who qualifies as a family for the purposes of immigration and nationality is increasingly at odds with family law’s growing aspiration of a nuanced, inclusive, and complex vision of the legal family. Immigration and nationality law has been interpreted to significantly privilege parent-child relationships linked by biological connection, despite the Immigration and Nationality Act’s (INA) express reliance on state family law frameworks that have evolved beyond that narrow idea. Agencies tasked with enforcement of immigration and nationality laws have gone so far as to add a biological component to family recognition, even when the INA does not require one. This Article argues that the outdated fixation on biology in the enforcement of immigration law is a manifestation of the racially exclusionary and patriarchal ideals that animate the concept of jus sanguinis citizenship, rooted in a xenophobic infatuation with purity of bloodlines. Upholding that regime of biological supremacy has caused legal actors to cling to the otherwise obsolete notion of legitimation, which is derived from archaic social and religious norms. As a result of these perverse policy choices, queer and non-biological transnational families face the harms of non-recognition under immigration and nationality law and of deprivation of the right to automatically confer citizenship from parent to child. This Article argues that biological supremacy based in jus sanguinis is fundamentally flawed as a construct of national belonging. Accordingly, the time has come for jus sanguinis citizenship to be reconceptualized as jus parentis, or parentage right citizenship—a nationality regime based upon parenthood rather than reproduction—in order to give way to a more equitable and rational approach to the conferral of citizenship between parent and child.