02 Aug 2019 Children Born Abroad Via Surrogacy Denied U.S. Citizenship
The conflict and division surrounding immigration in the United States have spread beyond border crossings and asylum claims. Based on a narrow interpretation of existing law, U.S. authorities have not only denied citizenship to the children of married U.S. citizens, they are applying the law in a way that discriminates unfairly against married same-sex parents.
As reported in The Daily Beast, back in 2013, when the U.S. Supreme Court overturned the Defense of Marriage Act, the Department of Homeland Security issued a guidance stating that it would evaluate the validity of and apply the law to same-sex marriages in the same way it would evaluate and apply the law to heterosexual marriages. But the children of gay and lesbian parents born abroad—even babies born to active service members on U.S. military bases—are being subjected to a different standard of scrutiny and provenance than children of heterosexual parents born in similar circumstances.
The U.S. State Department’s failure to apply the law uniformly has triggered several lawsuits. Most recently, a married gay couple from Georgia sued the department for unconstitutionally refusing to recognize the “rightful American citizenship” of their daughter, born via surrogacy in England in July 2018, as reported by Kate Brumback of Associated Press.
The dads, who reside in Decatur, Georgia, are both U.S. citizens, and both are listed as fathers on their daughter’s birth certificate. Derek Mize was born and raised in Mississippi; Jordan Gregg was born and raised in England and holds dual U.K. and U.S. citizenship.
The two met in 2014 in New York, and Gregg soon moved to the U.S. to be with Mize. They married in 2015 and moved to Georgia in 2017, as Brumback reports.
Daughter Simone was born in July 2018 in England, with a close friend of the family as surrogate, and the family returned to their home near Atlanta, Georgia, in September 2018.
It was not until they tried to get a Social Security number for Simone that the dads were told they needed a consular record of birth abroad (CROB) or a U.S. passport for Simone from the U.S. embassy in London. In April 2019, the family traveled to London, where all three appeared in person, armed with the dads’ U.S. passports, marriage certificate, and Simone’s birth certificate listing both men as fathers. Dads and baby underwent three hours of questioning on how Simone was conceived and her parentage, only to be informed Simone was not eligible for citizenship.
The department’s decision was based on an interpretation of the Immigration and Nationality Act (INA), originally enacted in 1952, at a time when reproductive technologies such as surrogacy and non-traditional families such as theirs were unimagined. The citizenship of children born via assisted reproduction was not addressed in the law until 2014, when an updated interpretation was issued clarifying that a child born abroad who is genetically related to one U.S. citizen has a right to citizenship—a step forward at the time because, until then, there was NO stipulation in the law for children born via ART. According to the State Department website:
Even if local law recognizes a surrogacy agreement and finds that U.S. parents are the legal parents of a child conceived and born abroad through ART, if the child does not have a biological connection to a U.S. citizen parent, the child will not be a U.S. citizen at birth.
However, as the State Department also interprets the law, children born abroad via surrogacy who are genetically related to only one U.S. citizen parent are considered to be “born out of wedlock”… even when their intended parents are legally married. From the department website:
A child born abroad to a surrogate, whose genetic parents are a U.S. citizen father and anonymous egg donor, is considered for citizenship purposes to be a person born out of wedlock of a U.S. citizen father, with a citizenship claim adjudicated under INA 309(a). This is the case regardless of whether the man is married and regardless of whether his spouse is the legal parent of the child at the time of birth [emphasis ours].
Aside from the term’s negative and hurtful connotations, the designation “born out of wedlock” triggers an additional level of bureaucratic scrutiny and tests the intended parents must pass in order to determine whether their child is eligible for citizenship.
As reported by The Daily Beast:
Children born out of wedlock face higher legal and logistical hurdles to obtaining birthright citizenship: In addition to submission of DNA tests proving genetic links to U.S. citizen parents, their parents must be able to testify that they can support their children financially, and must prove that they have been present in the United States for at least five years prior to the child’s birth [emphasis ours].
In Simone’s case, she is genetically related to only one of her dads: Gregg, the dad who holds a dual UK/US citizenship. But Gregg, who married Mize in 2017, did not meet the residency requirements necessary to automatically transmit his U.S. citizenship to Simone. He had only moved to the U.S. in 2014—some four years prior to Simone’s birth, not the required five. In the State Department’s view, Simone’s other dad, Mize, who easily met the residency requirement, but who is not genetically related to Simone, doesn’t count.
The State Department argues that its policies regarding the citizenship of children born abroad via assisted reproduction do not discriminate and are applied equally, regardless of whether the married intended parents are heterosexual or same-sex couples.
But in practice, and the core constitutional issue in a growing number of lawsuits: heterosexual parents do not face the same level of scrutiny as same-sex couples because, as same-sex couples, they stand out. As Brumback of Associated Press writes:
During their three-hour wait at the embassy, Mize and Gregg watched about 20 male-female couples come in, present the same documents they had provided and walk out with passports for their children, Mize said. None of them were asked how the child was conceived and whether they were biologically related, he said.
As The Daily Beast reports, following the 2013 U.S. Supreme Court decision overturning the Defense of Marriage Act, the U.S. Department of Homeland Security issued a guidance stating “just as [U.S. Citizenship and Immigration Services] applies all relevant laws to determine the validity of an opposite-sex marriage, we will apply all relevant laws to determine the validity of a same-sex marriage.” From the article:
That “assumption of parentage,” as the State Department calls it, now seems to LGBT parents to be reserved solely for heterosexual married couples. Only same-sex couples, whose non-traditional family structure sticks out like a sore thumb, end up facing scrutiny over how their children came into the world, parents told The Daily Beast—and as a result, whether they are eligible for birthright citizenship.
Among those LGBT parents whose families have been impacted by the State Department’s discriminatory application of the law are Elad and Andrew Dvash-Banks (see our February 2019 article), a bi-national married couple who fathered twin boys via surrogacy. Because one twin is genetically related to Israeli citizen Elad, the U.S. State Department has denied his right to U.S. citizenship, while his brother, born of the same surrogate and genetically related to U.S. citizen Andrew, became a U.S. citizen at birth.
As we reported in February, the Dvash-Banks challenged that decision in federal court and won. The federal Central District of California court ruled that the baby was a U.S. citizen at birth and gave the State Department 60 days to appeal. As reported by The Daily Beast, on the 60th day, the Trump administration filed an appeal in the Ninth Circuit Court of Appeals, despite that court’s earlier rulings upholding the lower court position. The case is pending.
In another case cited by The Daily Beast, two married female U.S. military officers, one retired and one currently serving, faced a battle over the citizenship of their son born on an overseas military base in 2018. Although the State Department claims it requires additional documentation for all children born abroad via ART, as one of the moms pointed out, “State says children born through ART require extra paperwork for proof of citizenship, but there are no boxes on any citizenship forms which indicate ART is used.” As reported:
When their son was born on an American military base abroad last fall, it took months for their application for his U.S. passport to be processed—and only after they submitted reams of paperwork proving that one of the two women was the gestational mother, confirming whether or not the former officer had a “genetic relationship” with her son, and “physical evidence” that they had used an anonymous sperm donor.
“If we did [in-vitro fertilization] and were hetero, we could have a different egg and sperm that were not genetically related to us, but due to… the ‘assumption of parentage’ which exists for married couples, they would not question the birth,” said the former officer, who asked to remain anonymous due to the sensitivity of her wife’s position in the military.
In 2017, during my tenure as chair of the American Bar Association Assisted Reproduction Technology Committee, the ABA House of Delegates approved a resolution recommending that the Immigration and Nationality Act recognize children born via ART as long as one parent is a U.S. citizen—even if the child is not genetically related to the U.S. citizen parent. The resolution also urged the State Department to create guidelines that recognize the parental authority of intended parents, to cease the practice of categorizing children born to parents who are legally married or in civil unions as “born out of wedlock,” and to apply these expanded interpretations retroactively.
Had Trump not won in 2016, I believe we would have had some success in seeing State implement this new interpretation. As we have reported on extensively, the European Court for Human Rights has generally moved to require its member nations to prioritize protecting children’s’ citizenship rights and to give full faith and credit to parentage and marriage credentials from other nations. Yet the United States has of late moved in an opposite, more restrictive direction, and, in the current political environment, the policy evolution called for by the American Bar Association has moved to the State Department’s back burner, to be revisited in the future under a more supportive administration.
But, for a range of reasons, a growing number of intended parents continue to look to other nations to pursue their dreams of having a family. In too many parts of the world, including U.K. and the state of New York, surrogacy is banned outright or rendered impractical due to legal restrictions on surrogacy agreements and surrogacy compensation. In many Western nations where surrogacy is safe and legal, high costs drive couples to seek surrogacy abroad.
As things stand today, U.S. citizens engaging in assisted reproduction overseas should proceed very cautiously and investigate thoroughly in advance to determine whether they will have any problems transmitting their citizenship to their children born abroad. Engaging in surrogacy or other types of ART abroad is always a risk. Consult an attorney familiar with the laws of the United States and other applicable countries before taking a risk that may put your child’s future citizenship in jeopardy.