INHERITING CITIZENSHIP.

• Author: Titshaw, Scott

I. INTRODUCTION 2 II. DEFINING CITIZENSHIP 6 III.DEFINING INHERITANCE AND FAMILIAL STATUS 8 A. Reacting to Modern DNA Parentage Testing Technology 11 B. Reacting to Assisted Reproductive Technology and Surrogacy 12 C. The Twist of Two-Tiered Systems 14 IV.lNHERITED CITIZENSHIP LAWS AROUND THE WORLD 17 A. Primary Inherited Citizenship Systems 20 B. Dual Birthright Citizenship Systems 26 C. Hybrid Citizenship Systems 30 1. Countries Limiting Birthplace Citizenship Based on Parental Status 31 2. Countries Adding Limited Birthplace Citizenship Based on Parental Status 35 V. PURPOSES OF PROPERTY INHERITANCE 37 VI. PURPOSES OF CITIZENSHIP INHERITANCE 44 A. The State Perspective: Continuity and Loyalty 46 B. Perpetuating the Citizenry and the "Basket of Deplorables" 47 C.The Citizen Parents' Perspective: Perpetuating Privilege and Motivating Investment 52 D. Family Unity and Best Interests of Children and Parents 55 E. The Inheriting Citizen's Perspective: Ultimate Immigration Status 57 F. Other Citizens' Perspective: "Genuine Links" and Perceptions of Justice and "Nature" 58 VII. CONCLUSION 60 "[T]he family is deeply rooted in this Nation's history and tradition. It is through the family that we inculcate and pass down many of our most cherished values, moral and cultural. " - Moore v. City of East Cleveland, 431 U.S. 494, 503-04 (1972). "There are many new citizens in America whose immediate families are in other lands.... We have a social obligation to bring these families together." -John F. Kennedy, letter dated October 8, 1960 (1) I. INTRODUCTION

Leaders ranging from Churchill and Hitler to Obama and Putin have inspired personal sacrifice by appealing to citizens' love of and duty to the "fatherland," the "mother country," or "the homeland." Even the word describing this, "patriotism," evokes family ties. Of course, this all makes sense. The ideas of family and home have had primal emotional resonance since people began protecting their families and homes from outsiders, long before states were invented. The metaphors also are apt because the actual ties binding citizens most profoundly to one another and to the state are often those of family or of place, usually both.

Most of us are born, live, and die in the country where our parents were born. We become citizens on the day of our birth without doing anything further. Some states consider us citizens because of where we were born, regardless of who our parents are; others award citizenship at birth only to the children of citizen parents. (2)

This distinction has no practical consequence for most people, but it can be essential to those who do not qualify in both categories. It also reveals a great deal about the history and values of the state in question.

The most common form of citizenship acquisition stems from status as the child of a citizen parent. In fact, citizens of virtually every nation on earth can transmit citizenship status to their children.' This inherited citizenship doctrine is a form of descent-based citizenship transmission traditionally catted jus sanguinis, Latin for "blood-right." As its Latin moniker hints, inherited citizenship is as old as the concept of citizenship itself. (4) Yet, it raises cutting edge issues today, ranging from the meaning of citizenship in a world of more convenient and affordable international transportation, communication, and relocation, to the definition of parentage for children conceived through assisted reproductive technology (ART) and surrogacy. (5)

This Article uses the term "inherited citizenship" rather than the more traditional terms "citizenship by descent" and "jus sanguinis citizenship" to describe the status automatically transmitted from a parent to a child at the time of birth. "Inherited citizenship" clearly signals the analogy to property inheritance that is described in detail below. (6) It is more specific than "citizenship by descent," which also encompasses subjects generally beyond the scope of this Article such as, for example, transmission of citizenship long after birth, or ethnocentric laws recognizing birthright citizenship for distant descendants of prior citizens. (7) The term jus sanguinis has been useful historically, but the concept of a "blood-right" to legal status is misleading in an age of accurate DNA testing, assisted reproductive technology, surrogacy, parental presumptions, adoption, and equitable parentage. It has too often been taken literally and misused to justify a genetic essentialist view of citizenship transmission that is exclusionary and inappropriate in modern contexts."

There are very few rules of law as universally recognized as inherited citizenship, and global agreement on a rule of inherited citizenship is particularly remarkable because each individual state's sovereignty is near its apex when identifying its own citizens." Whether a despot and his subjects are defining the protection and allegiance each owes the other or most citizens in a democracy are determining its membership criteria, outsiders have traditionally not interfered with citizenship priorities.'"

As the legal philosopher Felix Cohen pointed out seventy years ago, the universal adoption of a rule likely indicates a critical mass of important reasons supporting it." This Article seeks to identify and understand the critical mass of important reasons supporting inherited citizenship's universal acceptance. It also illuminates the concept's development and manifestations in divergent contexts by exploring and comparing its role in birthright citizenship laws around the world. Moreover, it shows how these reasons and the history of inherited citizenship both echo the purposes and origins of property inheritance and how both doctrines reflect family law definitions and purposes.

Although universally recognized, inherited citizenship is not the only form of birthright citizenship used today. There are three broad categories of birthright citizenship systems. Most nations, including the vast majority of states in Africa, Asia, and Europe, rely primarily on inherited citizenship to create new citizens at birth. A smaller group of around three-dozen countries, including Brazil, Canada, Mexico, the United States, and most other American nations, rely primarily on birthplace citizenship (jus soli, or "law of the soil," in Latin). (12) Yet, all these states supplement birthplace citizenship with extensive inherited citizenship rules for children born to citizens abroad. Finally, a significant number of countries that rely primarily on inherited citizenship also have adopted hybrid rules granting citizenship to some additional domestically born children based upon their parents' status at the time of their birth. This includes nations like the United Kingdom and Australia, which modified their original birthplace citizenship provisions to add inheritance or residence requirements, as well as states like Germany and Spain, which supplemented their original inherited citizenship laws by adding conditional birthplace citizenship in especially compelling cases, like those of third-generation legal residents.

Much thoughtful recent scholarship deals with the consequences of citizenship, deconstructing the status of citizen and articulating differences among persons with the same formal citizenship status." This Article, instead, analyzes the history, current rules, global trends, politics, and particularly the purposes of formal inherited citizenship laws around the world. This focus is warranted because formal citizenship status, the "right to have rights," is still so important that it motivates millions of people each year to risk danger or death to migrate and to apply for new citizenship in more desirable states. (14)

Following this Introduction, Part II briefly defines the history and meaning of "citizenship" and provides a general overview of some relevant contextual differences regarding its usage.

Part III points out issues regarding who may transmit citizenship to whom and discusses challenges in defining family status, such as "parent-child" relationships. This includes the reaction of various regimes to new definitional issues posed by family law reform, assisted reproduction, surrogacy, and accurate DNA parentage determination. Part III also briefly assesses the unique problems posed by two-tiered federal or supranational systems of family and citizenship law.

Part IV surveys and compares citizenship laws around the world, classifying birthright citizenship regimes into three categories: primary inherited citizenship systems, dual birthplace and inherited citizenship systems, and hybrid birthright citizenship systems. It also reviews some historical developments and recent trends among state citizenship regimes to provide context to these systems, noting that birthplace citizenship has been abandoned by many countries over the last century as global empires and ideological competition ebbed, reducing states' need to expand citizenship in order to integrate historically diverse populations in times of territorial expansion.

Part V traces the origins and rules regarding inherited estates in property to reveal shared doctrinal and policy aspects of these systems and inherited citizenship regimes, illuminating both doctrines through the comparison.

Part VI explains common rationales underlying birthright citizenship generally, as well as different purposes accomplished by the various categories defined in Part IV. Examining the purposes of inherited citizenship from divergent viewpoints, it explores the relevance of whether the rules play a primary or supplemental role in defining a nation's citizenry.

Some form of birthright citizenship is necessary to promote stability and intergencrational continuity. Current citizens may prefer to rely exclusively on inherited citizenship for that purpose if they harbor unitary ethnic and socio-religious ideas of citizenship or desire to...