Recent developments regarding the U.S. Department of State’s policy relating to children born abroad to same-sex couples are slowing making their way through the U.S. federal courts for final determinations regarding the continued viability of current citizenship rules.
It remains to be seen whether these challenges will result in these cases reaching the Supreme Court. The challenges have arisen due to state-of-the-art technology facilitating the birth of children to surrogates, the status of the noncitizen parent sperm donor who might be married to a U.S citizen and the immigration status of that parent and where the child is born.
Current U.S. State Department policy requires that a child born abroad must be biologically related to an American parent to become a U.S. citizen by operation of law and must meet the requisite transmission requirements.
The State Department has applied a provision of U.S. immigration law relating to children born "out of wedlock" to these cases, even though same-sex couples may be married. Gay rights activists have challenged this longstanding policy, claiming that it harms same-sex couples who often use assisted reproductive technology to have children. Read the State Department guidance and information concerning assisted reproductive technology and surrogacy abroad.
In February 2019, Judge John F. Walter of the Federal District Court for the Central District of California ruled that Ethan Dvash-Banks, the biological child of Elad Dvash-Banks, an Israeli citizen parent married to U.S. citizen Andrew Dvash-Banks, and born through surrogacy in Canada, should be deemed a U.S. citizen since birth. Aidan, Ethan’s twin, was conceived using sperm of his biological American father and was automatically granted a U.S. passport by the U.S. consulate in Toronto. Ethan was granted a tourist visa to the United States, which expired.
Judge Walter called the State Department’s interpretation of U.S citizenship laws "strained" and cited three cases in his decision, concluding that the State Department had no legal authority for requiring legally married parents to prove a child is their biological child in such cases where the parent satisfies the residency requirements under the Immigration and Nationality Act Section 301(g), and further he determined that section 301(g) is "not limited to biological parents and that the presumption of legitimacy that applies when a child is born to married parents…cannot be rebutted by evidence that the child does not have a biological tie to a U.S citizen parent.” Judge Walter did not, however, order the State Department to modify its policy and for this reason, we continue to expect lawsuits challenging this federal statute until a final determination is made by the Supreme Court.
Another recent decision by U.S. District Judge Emmet Sullivan in Washington D.C. resulted in the denial of the government’s request to dismiss a lawsuit brought by a married lesbian couple – one woman a U.S. citizen, the other not – whose son was denied U.S. citizenship. The noncitizen parent, an Italian citizen, gave birth to the child and the U.S. government argued that his lack of a biological relationship to the U.S. citizen parent made him ineligible for citizenship. The couple had another son whom the State Department deemed a U.S. citizen because the U.S. citizen parent gave birth to him. Judge Sullivan did not actually rule on the merits of this case but cited his discomfort with the State Department’s position, which has historically tied citizenship to a person’s place of birth or their blood relationship to a citizen.
Families using reproductive technology, including surrogacy, in vitro fertilization and donor egg procedures have prompted legal and ethical debates on what defines parenthood in the past.
Immigration and citizenship questions may be the final frontier in this debate. The rationale for the State Department’s approach is to assure that those granted U.S. citizenship are tied to this country. Given the challenges of new technology, the immigration rules may have to be amended going forward.
For family-based applicants for permanent residence, the fast-changing pace of science and technology is something we will continue to monitor as U.S. immigration regulations and court rulings try to keep up.
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