Prior to my youngest son’s birth, my wife and I flew cross-country to attend my law school class reunion. She was in her first trimester of pregnancy.
I hardly considered the possibility of delivery on board the flight. However, premature births do happen. Sometimes they occur on plane rides between countries.
In such situations, determining the citizenship of the child can pose one of the most daunting questions of immigration law.
Yet, it wasn’t until I ran across a news story about a rare air birth on a flight from Taipei to Los Angeles that I pondered the legal ramifications of such an event.
In particular, what are the rules that govern the citizenship of a child born in the sky?
The early reports indicated the birth took place over Canadian skies, although the plane made an emergency landing in Alaska. The mother was born in Taipei City. The father’s nationality was not disclosed. The airline was China Airlines, Taiwan’s largest airline.
Being a citizenship and naturalization attorney, I can assure you the details of this news story raise some tough legal issues about a child’s nationality.
So get ready for a bumpy ride as a we take a look at citizenship principles in the context born on board an international flight.
The story also strikes a political chord.
Many individuals, including our president, maliciously characterize citizenship law as a simplistic matter for political gain.
On the contrary, as the circumstances of this story help to demonstrate, rules concerning which children born in airspace can be declared citizens of the U.S. rest on a complex tapestry built on the unique laws of different countries.
A woman has given birth during a Los Angeles-bound China Airlines flight after unexpectedly going into labour.
What Are The Rules For Determining Citizenship Of A Child Born In The Sky?
The citizenship of a child born in air space depends on many factors. In some instances, the answer is straight-forward. In others, it can be quite complicated, contingent on details most folks would hardly ever think are relevant to determine a baby’s citizenship.
In general, there are three different bases for determining citizenship here:
- The child might be deemed a citizen of the country whose airspace they were flying over at the time of birth
- The child might inherit the citizenship of the child’s mother or father
- The child might assume the citizenship of the aircraft in which they were flying
An U.S. View Of Citizenship For Children Born On International Flights
Before you respond to my question, let’s modify a few details to further our understanding of the legal situation from a United States perspective.
Let’s say the woman was a conditional lawful permanent resident, who had left the U.S. to take a break from her child’s father. They were having problems in their relationship. They never got back together.
She did not file to remove her conditions and never became a permanent resident without conditions.
She did not return to the U.S. and the father never held himself out as the father of the child.
When the child was born, the plane was not in U.S. air space. She was flying on a British-owned airline.
Who Owns The Airspace?
We’ll start with an easy question.
Is a child born to a non-citizen, in U.S. air space, a U.S. citizen?
In the United States, a child born in the country’s waters or airspace is a U.S. citizen by birth in accordance with the principle of jus soli – right of the soil – that’s the right of anyone born in the territory of a state to nationality or citizenship of that territory.
This principle, of course, is related to circumstances that xenophobic critics derogatorily label “anchor babies” and “birth tourism”.
More commonly, we refer to this type of situation as birthright citizenship, the right of anyone born on our soil (and subject to our jurisdiction) to United States citizenship.
But, wait, there’s a limit.
If a child is born more than 12 nautical miles above the U.S., then the principle of jus soli does not apply and birth is not considered a birth on U.S. territory.
(For the record, 12 nautical miles equals approximately 13.8 miles.)
Internationally, there is some debate about the upper limit. Under the Bagota Declaration of 1976, a country’s sovereignty extends 22,300 miles above earth.
I can’t image when a pregnant woman would be flying at such a high altitude, although it is theoretically possible.
So how high was the plane flying at the time of birth?
What Is The Mother’s Nationality?
Since the mother was a conditional lawful permanent resident, where was the mother born?
For our example, we’ll say France.
Is the child a French citizen?
The principle of jus sanguinis – right of blood – is a principle of nationality law by which citizenship is not determined by place of birth but by having one or both parents who are citizens of the state. Children at birth may automatically be citizens if their parents have state citizenship or national identities of ethnic, cultural, or other origins.
In U.S. law, these types of cases, involving a child born to a U.S. citizen in another country, fall under what we call the rules for acquisition of citizenship.
Most nations support the notion of jus sanguinis. France is one such country.
Not so fast. We need to address a few other concerns.
If the plane was within U.S. air space, and the baby is therefore a U.S. citizen at birth, we need to know if France allows dual citizenship.
And, more specifically, what are the dual citizenship rules for France in cases where the child is born abroad?
Taking it a step further, what if the mother and father were not married? What are the rules in France for children born to a out-of-wedlock French citizen parent?
What Is The Father’s Nationality?
What about the father you ask?
Can’t the child obtain U.S. citizenship through him?
Isn’t he a U.S. citizen?
We don’t know that, do we?
The mother is a conditional lawful resident. So, of course, you assume she was married to a U.S. citizen husband.
We don’t know who the father is.
(Tricky? Not really. It’s the type of questioning and fact-finding which should go into all immigration cases.)
Maybe she was – but maybe she was not – still married to a U.S. citizen at the moment of conception.
In other words, maybe the child’s father is not a U.S. citizen.
Yet, even assuming the father is a United States citizen doesn’t answer the question of the child’s nationality, especially if the couple was no longer married.
The mother did not return to the U.S. after her departure and the father never held himself out as the father of the child. The couple never got back together.
Under the rules for acquisition of citizenship, a child born to an out-of-wedlock U.S. father may obtain United States citizenship if a blood relationship between the child and father is established by clear and convincing evidence and the child is legitimated before turning 18.
That’s for a U.S. citizen. What if the child’s father was from the Ukraine or Thailand?
Dual citizenship is disallowed.
Do Airlines Have A Nationality?
You’re probably shaking your head, wondering what does the country of the airlines have to do with a new born’s citizenship.
Allow me to explain.
The woman gave birth on board a British-owned airline.
Under the 1944 Convention of International Civil Aviation, all aircraft have the nationality of the country in which they are registered. Multiple nationalities are not allowed. (This makes sense because otherwise it would be incredibly difficult to resolve disputes which arise.)
However, the 1944 Convention did not affect the nationality rules for child birth in air space.
But in 1961, under the Convention on the Reduction of Statelessness, the air space child birth issue was addressed. Essentially, the 1961 Convention stated a birth on an aircraft shall be treated as a birth in the country of the plane’s registration.
So does this mean that since a child, though flying over the U.S., with parents born in France and China, is a British citizen?
The 1961 Convention only applies only to air space births when the child would otherwise be stateless.
What is Statelessness?
A stateless person is someone who is not a national or citizen of any country under that country’s law. This means the individual is treated as a foreigner by every country in the world and lacks certain basis rights (such as the right to live in a country or participate in elections) anywhere.
Statelessness often occurs due to the dissolution of former states. According to United Nations estimates, 12-15 million people worldwide are considered stateless.
A stateless person may also be a refugee. But not all refugees are stateless.
In actuality, this rule rarely kicks in for two reasons:
First, because the citizenship of most children can be determined on the basis of jus sanguinis.
Second, only 76 nations signed the 1961 Convention. The United States did not.
The United Kingdom did.
Back To The Taiwanese Mother
So there you have it.
Now, you’re the judge.
What is the citizenship of the child born on board the flight from Taipei to Los Angeles?
The first issue is whose airspace was the plane flying over at the time of delivery.
(I’m deliberately avoiding the question of a delivery that transpires over the air space of two different countries.)
The earliest stories stated the plane was flying over Canada.
Canada recognizes jus soli. So the child in the news account would be a Canadian citizen as a result of being born in air space above Canada.
Yet, later news said that the U.S. citizenship was issued by authorities in Alaska.
According to the Alaska Department of Health and Social Services, under state statutes on birth registration, the child is eligible for an Alaska birth certificate, regardless of the state’s 12-mile territorial limit.
“A child born in international airspace and then brought into Alaska will have her or his birth registered here,” explained a spokesperson, “It doesn’t hinge on how far out the child was born, it hinges on him or her getting out of a moving conveyance here.”
(If you’re feeling confused, you’re not alone.)
What Country Is The Mother From?
What about the mother’s citizenship? (We have no information about the father.)
This comes down to the question whether Taiwan is part of China or an independent country.
To say the least, the Republic of China (commonly referred to as Taiwan) and the People’s Republic of China (in mainland China, commonly referred to as just China) have different opinions on this issue.
The Republic of China views itself as in independent country with Taipei as its capital and China as an illegal state occupying its land. China sees Taiwan as part of its sovereignty as virtue of having lost the civil war.
So, back to the question of whether Taiwan is part of China or not.
China does not recognize dual citizenship. Taiwan, on the other hand, does.
What Is The Airline’s Nationality?
China Airlines, by the way, is a Taiwanese owned company.
As I read this news story, I wondered why this type of case had not already landed on my desk already – since I get so many bizarre fact patterns thrown my way.
If there’s one takeaway from this blog post, it’s that immigration law is more complicated than the general public and our president suspects . . .
. . . and a point too many immigrants minimize.
Despite a belief that some immigration rules are relatively easy to understand, there are usually exceptions to any rule, and quite often exceptions to the exceptions – and in some cases, exceptions to the exceptions of the exceptions.
Citizenship is one of these issues that looks easy to grasp on the surface, but can be incredibly difficult to unravel in real cases.
Of course, cases are rarely as convoluted as the examples discussed above.
Still, as I read this news story, I wondered why this type of case had not already landed on my desk – since I get so many bizarre fact patterns thrown my way.
Before closing, allow me to present you with a situation closer to the day-to-day reality of immigration activists in the United States.
Assume a mother born in El Salvador, Honduras, or Guatemala, hoping to start a new life in Canada, boards a flight to Canada and gives child birth while flying over Utah. Would the current administration decry the situation as the birth of an anchor baby?