What’s Happening With Children Born Abroad to LGBT Parents?
By Amira Hasenbush
After three different friends sent me this article (“Trump Administration to LGBT Couples: Your ‘Out of Wedlock’ Kids Aren’t Citizens”), I decided it might be time for a blog to explain what’s going on with a bit more legal detail. Let’s start with the facts of the three cases:
Andrew and Elad Dvash-Banks: Andrew was born and raised in the United States and is a US citizen (with dual Canadian citizenship). His husband, Elad, is Israeli. While living in Canada, they created embryos using an anonymous egg donor and their sperm, and a surrogate carried one embryo genetically related to each of them in the same pregnancy. They received a court order recognizing them both as parents, and they are both on the children’s birth certificates. When they sought to document their children as having acquired US citizenship at birth even though born abroad, it was denied for their son who did not have a biological connection to Andrew, his US citizen father.
Allison Blixt and Stefania Zaccari: Allison was born and raised in the United States and is a US citizen. Her wife, Stefania, is Italian. They moved to London to be together before marriage equality, since they could not figure out a way to get Stefania immigration papers in the US. They married once it was available to them. After they married, Stefania gave birth to their first child, using donor sperm, and later Allison gave birth to their second, using donor sperm. They are both on their children’s birth certificates. When they sought to document their children as having acquired US citizenship at birth even though born abroad, it was denied for their son who did not have a biological connection to Allison, his US citizen mother.
Roee and Adiel Kiviti: Roee is a US citizen by birth, and his husband, Adiel, received his citizenship through marriage. They live in the United States, and have two children who were each born to a surrogate in Canada, using donor egg and their sperm. When they sought to document their children as having acquired US citizenship at birth even though born abroad, it was denied for their daughter who did not have a biological connection to Roee, her US-born citizen father, and also because Adiel, her biologically related US-citizen father, had not yet been physically present in the US for the five years required to qualify to transmit her citizenship at birth when born abroad.
Noticing a pattern? So, is the Trump Administration really calling children of married LGBT couples born out of wedlock? Well, sort of…
The Immigration and Nationality Act has two different sections that define citizenship at birth to children born abroad – sections 301 (8 U.S. Code § 1401. Nationals and citizens of United States at birth) and 309 (8 U.S. Code § 1409. Children born out of wedlock). Section 301 is presumed to be applicable to children born within a marriage, since section 309 specifically singles out children born out of wedlock, and only the out of wedlock section requires that “a blood relationship between the [child born abroad] and the father is established by clear and convincing evidence.”
The government had interpreted children born within marriage to be biologically related to both parents, and relegated all other children to be adjudicated under the out of wedlock section. Therefore, any child of a same-sex couple or using donor egg or sperm would be considered a child “out-of-wedlock,” and would have to prove a biological connection to the spouse transmitting citizenship. However, the Ninth Circuit ruled twice that such an interpretation made no sense based on the language of the statute and the general policy that protects marital families and presumes that children born in a marriage are the children of both spouses, regardless of genetic connection. In Scales v. INS, a child born abroad within a marriage between a Filipina woman and a US citizen man was held to be a US citizen at birth, acquiring his citizenship from the husband, even though the husband was not the biological father. Following that case, in Solis-Espinoza v. Gonzales, the court ruled that a child born abroad and raised within a marriage between a US citizen mother and Mexican father was held to be a US citizen at birth, acquiring his citizenship from the wife, even though the wife was not the biological mother (the child was likely born from an affair, but the biological mother abandoned the child, and the wife raised him as her own from infancy). Given the history of those cases, it’s unsurprising that The Central District Court in California held that the same reasoning must apply in the Dvash-Banks’s case, and both twins must be recognized as citizens at birth, regardless of which spouse the child is genetically related to. (As of last week, the government has decided to appeal that case to the Ninth Circuit.)
However, last summer, the State Department issued new rules that are applicable to people who have children through assisted reproductive technology abroad. The bottom line? The US citizen parent transmitting citizenship at birth needs to have a biological connection to the child – either through genetics or gestation. So, amazingly, if Allison had carried Stefania’s eggs (rather than Stefania carrying them herself), their child would have acquired citizenship at birth, but because Stefania was the genetic and gestational mother, the child was excluded. And even though Roee and Adiel are both citizens, Roee doesn’t count for purposes of transmitting citizenship at birth, because of his lack of biological connection. (Unfortunately for Adiel, he did not have enough years of physical presence in the US to transmit citizenship to his child at birth.)
So, is this really discriminatory against LGBT people? Yes, but there is more. Yes, because children of LGBT parents (other than straight couples with trans parent(s) who are not perceived as LGBT) will be presumed to have no more than one biologically-related parent and will have that genetic connection questioned. They will then have to prove biological parentage between the child and the US citizen parent, because legal parentage will not suffice. It is not a standard practice to ask US citizen parents whose children were born abroad whether the child was born through assisted reproduction – yet, it obviously would be for same-sex couples.
But there is more, because it’s also discriminatory against parents by assisted reproduction, because they, too, will have to prove biological parentage between the child and the US citizen parent – legal parentage will not suffice. And this can get even messier if the fertility clinic screws up and uses the wrong gametes, potentially leaving a child stateless.
And, it’s also discriminatory, because children born within a straight marriage from extramarital sex (which 23 And Me is revealing to be way more common than we may have suspected) will be the only children for whom legal parentage will likely be presumed to be the same as biological parentage and will fly under the radar.
So, what’s the fix? Legal parentage at birth should be sufficient to transmit US citizenship at birth, regardless of the biological connection. If the law bestows upon you the rights and obligations of parentage upon your child’s birth – including requirements to support your child, then you should have the right to give them the benefit of your citizenship at birth, like any other child born through sex within a straight marriage. In 2019, children born by assisted reproduction are becoming more and more common – not just for LGBT couples, but for everyone. Children born through efforts of intentionality, planning and extra expense should not then be penalized because of a genetic loophole.
 For an interesting discussion on why the Supreme Court held that treating mothers and fathers differently in determining parentage for citizenship purposes was not an unconstitutional distinction on the basis of sex under the Equal Protection Clause, See Nguyen v. INA.
 For a longer explanation on this, see the Supreme Court case of Michael H. v. Gerald D. which protected the husband as the father of the child, even though it was known that the child was the product of an extramarital affair with another man.