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Costica Dumbrava maintains that ius sanguinis citizenship is a historically tainted, outmoded, and unnecessary means of designating political membership. He argues that it is time to abandon it. Dumbrava limits his challenge to ius sanguinis citizenship per se, and even suggests that family-based migration rights could be used to minimise the disruptive effect of abolishing citizenship-by-descent. But his core complaints about ius sanguinis citizenship – the mismatch of biological parentage and political affinity, the difficulties of determining legal parentage – can be, and have been, levied against these various family-based preferences and statuses, which are likely found in every nation’s nationality laws. It is therefore important to consider his proposal in light of the role that the parent-child relationship plays in the regulation of migration, naturalisation, and citizenship more generally. I also argue that, as a remedy for the problems that he has identified, Dumbrava’s proposal is at once too restrained and too radical.

I share Costica Dumbrava’s critique of ius sanguinis citizenship, and ultimately what is, I think, his rejection of birth as the basis for political membership generally. Of course, there are issues of practicality – of the world as we find it – that might limit whether and how one would advance the abolishment of birthright citizenship in light of specific political dynamics. But it is precisely those practicalities, and the near unthinkability of alternatives to birth-based citizenship that demand our interrogation of birthright in the first instance. As Joseph Carens has argued with respect to his advocacy of open borders, ‘even if we must take deeply rooted social arrangements as givens for purposes of immediate action in a particular context, we should never forget about our assessment of their fundamental character. Otherwise we wind up legitimating what should only be endured’.

Costica Dumbrava’s proposal for abandoning ius sanguinis is timely and bold. My intuition is to reject his suggestion that children’s citizenship might be disconnected from that of their parents, but to join his advocacy for a radical rethinking of the ius sanguinis principle with a view towards eliminating it once and for all. These are rather contrasting stances in relation to the same principle. My contribution aims to resolve the apparent contradiction.

In his kick-off contribution, Costica Dumbrava offers a threefold critique of ius sanguinis as a norm of citizenship acquisition. I share the scepticism expressed by various contributors to this Forum. However rather than address Dumbrava’s critique head on, I suggest that the kind of critique of ius sanguinis that he offers gets things moving askew from the start. When asking what citizenship rules we ought to endorse or reject, we ought to begin with a prior question: ‘what do we need state citizenship rules for?’

Problems have plagued the ius sanguinis principle – the transmission of citizenship from parent to child – for as long as it has existed. Costica Dumbrava is surely correct that the time has come to ask whether ius sanguinis is still necessary. But the core problem with ius sanguinis, I would argue, is not that it uses the parent-child relationship to determine membership but that it overemphasizes the importance of the genetic tie to this relationship.

I agree to certain extent with Costica Dumbrava that ius sanguinis encompasses certain problematic issues, especially where it concerns newer forms of procreation, like IVF for lesbian couples and surrogacy. However, the origin of the problem cannot be attributed to ius sanguinis, but to non-solidarity of states that overuse the ordre public exemption for the denial of the recognition of parentage. Ius sanguinis is still the most suitable option for the main purposes of nationality law where it concerns children. I like Bauböck’s proposal of a . I see it, however, more as a change from ‘law by blood’, meaning parentage ties based on blood relationship, to a ‘blood by law’ relationship, meaning that parentage ties are seen to be established by the law. This thus means only an extension of the ‘blood’ definition.

Citizenship is needed from birth, and ius sanguinis citizenship, rather than merely extending unjustified privilege, allows children to live and move with their parents; their continuing citizenship as adults, however, could be made conditional on some period of residence.

Costica Dumbrava has raised an important question about whether to abandon ius sanguinis citizenship. His arguments are that ius sanguinis is historically tainted and unfit to deal with contemporary issues such as developments in reproductive technologies and changes in family practices and norms. He also claims that ius sanguinis is normatively unnecessary, as it is possible to deliver its advantages by other means. In my response I argue that – from a human rights perspective – children need their parents’ citizenship – or rather, the citizenship of their primary caretakers, be they biological parents or not. Consequently, although I concur with the argument that ius sanguinis, if taken literally, is unfit to deal with some new family arrangements, I do not endorse the viewpoint that it is time to abandon ius sanguinis. Rather, ius sanguinis should be translated into ius filiationis by entitling children to their social parents’ citizenship. In order to achieve mutual understanding about this, states should engage in international cooperation with a view to adopting common guidelines on the recognition of the legal parent-child relationship –as happens already with regard to adoption.

I overall agree with Dumbrava’s argument that ius sanguinis is unable to cope with the diversification of family structures and is not that morally appealing to begin with, I disagree with him on the details, especially with his background assumption that family ties (although not exclusively genetic, as it is presently the case) must play a salient role in the distribution of citizenship – although in the second part of this contribution I do offer a potential defence of his view against what is probably the strongest objection to his argument, which is that the abolishment of ius sanguinis would split families apart. The main question is: Why should we insist on ius sanguinis except because it would ensure that everyone’s human right to citizenship is satisfied? And insofar as statelessness can be equally avoided via ius soli, why should blood ties create an entitlement to citizenship?

Citizenship has a political and a legal dimension. In his opening contribution, Costica Dumbrava only marginally addresses the legal dimension of citizenship, acknowledging its importance, but suggesting that it is replaceable with alternative arrangements, such as a universal status for children. But in reality much legal baggage is attached to citizenship, and one cannot simply shake it off, even if this appears normatively attractive. The whole human rights movement can be seen as an effort to separate access to legal rights from possessing a status of political membership, and this attempt has not reached its goal (yet). Citizenship is still the ‘right to have rights’. Avoidance of statelessness is therefore not just a legal whim; it is a human rights failsafe mechanism.