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Citizenship rules eased for kids born abroad to same-sex couples

The State Department rule had denied birthright citizenship to some children born overseas via IVF or surrogacy

Protesters rally in front of the Supreme Court as it hears arguments on a discrimination case in 2019.
Protesters rally in front of the Supreme Court as it hears arguments on a discrimination case in 2019. (Bill Clark/CQ Roll Call file photo)

The State Department on Tuesday made it easier for American citizens who used reproductive technology, including many in same-sex marriages, to confer U.S. citizenship on children they had while abroad, scrapping a previous genetic requirement imposed under prior administrations.

Under the department’s new interpretation, children born abroad to married parents may be entitled to birthright citizenship as long as one parent is a U.S. citizen and the child is related either genetically, or gestationally, to one parent.

Critically, the department will no longer require the child to be biologically related to the American parent in order for that child to be recognized as a U.S. citizen at birth, an issue that had a disproportionate impact on gay couples.

This means children born abroad via surrogacy or through other forms of reproductive technology, using the sperm or egg of their non-American parent, for example, would still be entitled to birthright citizenship as long as their parents are married.

The State Department said in a statement the updated interpretation “takes into account the realities of modern families and advances in [assisted reproductive technology].”

“This change will allow increased numbers of married couples to transmit U.S. citizenship to their children born overseas, while continuing to follow the citizenship transmission requirements,” the department said.

Aaron C. Morris, executive director of Immigration Equality, a national LGBTQ immigrant rights organization that represented couples fighting the prior policy, said the policy change marks a “substantial step forward for a lot of people.”

“This is a long time coming. It took a lot of years of litigation, but it is finally recognition that same-sex couples deserve the same rights as all other families. We were happy to play our part in effecting this change,” he said.

The policy revision does not affect the citizenship requirements for unmarried parents, according to the State Department. It would also continue to bar American citizens from conferring citizenship to their children in more limited instances where the child is born abroad, and neither spouse is biologically related to, or physically gave birth to, the child.  

Previous policy had restricted the ability of some American citizens living abroad to confer citizenship on their children, spurring a slew of litigation by same-sex couples in particular when the U.S. refused to recognize their children as American citizens.

Many of those U.S. citizens had moved abroad and married their non-American partners before same-sex marriage became legal in the U.S. with the Supreme Court’s 2015 landmark ruling, and before they would have had the right to sponsor a foreign-born partner for a green card.

The prior interpretation — which predated the Trump administration but sparked a flurry of litigation during that time in the wake of same-sex marriage’s legalization — produced absurd results at times.

In one case, an American citizen named Andrew Mason Dvash-Banks went to court after his son, E.J., was denied birthright U.S. citizenship, despite being born from the same surrogate minutes apart from his brother A.J., who was deemed a U.S. citizen at birth.

That’s because E.J. had been conceived with the sperm of Andrew’s Israeli husband, Elad Dvash-Banks, while A.J. had been conceived with his sperm. Both boys were carried simultaneously by a gestational surrogate and born in Canada, and Elad and Andrew are legally married and parents to both.

In another instance, a married lesbian couple living in London, one American woman and the other Italian, saw their son denied U.S. citizenship because he had been carried by the Italian wife.

Several federal judges have ruled against the State Department’s prior interpretation in cases brought by individual families.

A federal judge in California ruled in favor of the Dvash-Banks family in 2019, finding the citizenship statute “does not require a person born during their parents’ marriage to demonstrate a biological relationship with both of their married parents.”

The other couple’s case remains pending in federal court in New Jersey, where they now reside, according to Morris, one of their lawyers.

Loren Locke, an immigration lawyer and former State Department consular officer, said the change from the department’s long-standing interpretation is “a pretty exciting development, and an overdue one.”

“It really blows it open. There will be a lot more families,” she said.

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