해외출생자의 국적 취득으로 본 미국 국적 제도의 변화: 동성혼 법제화와 보조생식기술의 영향을 중심으로

Abstract

This article reviews how the U.S. citizenship and naturalization policy has changed for children born overseas to a U.S. citizen parent. In particular, I focus on how the U.S. citizenship and naturalization policy has changed to reflect the increased diversity in marital and family relations after the 2015 U.S. Supreme Court ruling had legalized same-sex marriage in the U.S. The nationality law in the U.S. is based on jus soli but also includes elements of jus sanguinis. A U.S. citizen parent can transmit citizenship to one’s child born overseas if the U.S. citizen parent has fulfilled a domestic residence or physical presence requirement. In terms of transmitting citizenship by bloodline, it is comparable to the Korean nationality law based on jus sanguinis. While the legal distinction between “in wedlock” and “out-of-wedlock” births has been abolished in the U.S., the conditions for transmission of U.S. citizenship to child born abroad varies practically by parents’ marital and citizenship status. With the increase in the number of births through assisted reproductive technology, particularly from overseas, the U.S. citizenship and naturalization policy distinguishes the conditions for conferring citizenship to a child born overseas by three different parental categories: legal parent, genetic parent, and gestational parent. From a long-term perspective, it is necessary to start discussions on how the Korean citizenship system should handle children born within Korea or abroad through assisted reproductive technology, children of same-sex couples legally recognized in other countries, and children with a transgender parent who has either started or finished the legal process of changing gender.