03 Jul 2020 Federal Court Rules Gay Dads’ Baby Born Via Surrogacy Abroad Is U.S. Citizen

A federal court has ruled, once again, that the child of a legally married gay couple, born via surrogacy abroad, is a U.S. citizen and has been since her 2019 birth—refuting the Trump administration’s continuing policy of defining her and other similar surrogate births to LGBTQ parents as “out of wedlock.”

The convoluted policy is based on genetics. As reported by the Star Tribune, the case is one of several challenging the State Department’s policy of treating LGBTQ parents differently than heterosexual parents who travel to another country for surrogacy.

In a June 17 ruling, a federal judge in Maryland ordered the U.S. State Department to recognize Kessem Kiviti, who was born via surrogacy in Canada in February 2019, as a U.S. citizen since her birth and to issue her a U.S. passport. However, the decision did not extend to mandating changes in the State Department policy in regard to future cases.

The Kivitis Created Their Family Using Assisted Reproductive Technology

Kessem is the daughter of two gay dads: Roee Kiviti, who was born in Israel and moved to the United States with his  parents in 1982, at age 4; and Adiel Kiviti, born and raised in Israel, who moved to the U.S. in 2015 and became a naturalized U.S. citizen in January 2019. The couple were married in Santa Barbara, California, in October 2013.

Kessem is the couple’s second child. Their first, a son, was, like Kessem, conceived through assisted reproductive technology, using a Canadian gestational surrogate, a donated egg, and Roee’s sperm. Following his birth, in November 2016, a Canadian court found that Roee was the boy’s biological father and that the Kivitis, and not the surrogate, were his legal parents. His Canadian birth certificate showed Adiel and Roee as his parents. Back in the U.S. with their son, the Kivitis applied for and received in February 2017 a U.S. passport for the baby, with no questions asked by the State Department about his biological relationship to the fathers.

When the two dads added Kessem to their family, they again traveled to Canada for gestational surrogacy, using an anonymously donated egg. But this time there was one critical difference: Adiel’s sperm was used instead Roee’s. In February 2019, a Canadian court established Adiel’s biological relationship to Kessem and ordered that the Kivitis, and not the surrogate, were Kessem’s legal parents. Her Canadian birth certificate showed Adiel and Roee as her parents.

Back in the United States with their daughter, the dads applied for a U.S. passport for her. A day later, they got a call from State Department requesting additional information, including details about the surrogacy arrangement. Adiel Kiviti provided a copy of the Canadian court order establishing the Kivitis as Kessem’s parents. But with Adiel, who had lived only a few years in the United States, as her genetically related parent, Kessem’s application fell under a different set of rules, which have been interpreted by the Trump State Department in the most onerous way. Because Roee is not biologically related to Kessem, under the State Department’s definition, she is considered to have been born “out of wedlock.” Because her biological father, Adiel Kiviti, had not lived in the United States for a minimum five years prior to her birth, the State Department determined that Kessem was not a U.S. citizen and denied the passport application.

In September 2019, followed by an Amended Complaint in December 2019, the Kivitis filed suit in federal court, claiming in part that the State Department discriminated against them as a same-sex couple and that their Fifth Amendment rights to equal protection had been violated. The suit also asked for “a permanent injunction against the State Department treating the children of same-sex couples as born out of wedlock and thereby denying them U.S. citizenship at birth.”

In its June 17 ruling, however, the court pointed out that “where a child is born to two married fathers by way of a surrogate who was implanted with an egg from an anonymous donor that was fertilized by one of the father’s genetic material, the State Department does not consider that child to have been born in wedlock. According to the deposition testimony of Paul Peek, an official of the State Department’s Bureau of Consular Affairs, two married men can never have a child that the State Department considers to have been born in wedlock. Instead, the children of such marriages are always deemed to have been born out of wedlock and must have their claims to citizenship at birth adjudicated through § 1409(a).”

While the ruling orders the State Department to recognize Kessem’s U.S. citizenship and to issue the U.S. passport, it does not grant the requested injunction to stop the agency from treating the children of married U.S. citizens who are LGBTQ as “out of wedlock.” In another similar case we have written extensively about, that of gay dads Elad and Andrew Dvash-Banks, currently pending appeal, the State Department determined that one of their twin sons born via surrogacy in Canada was a U.S. citizen, the other not a citizen—solely due to the genetics of the fathers. In that case, in order to apply for U.S. citizenship for their sons, the couple was forced to undergo genetic testing to determine which was biologically related to which twin. One boy, related to Andrew Dvash-Banks, a U.S. citizen, was granted citizenship; the other boy, related to Israeli citizen Elan Dvash-Banks, was denied citizenship. As we wrote at the time, “Two boys, born just a minute apart, from the same egg donor and surrogate, are viewed very differently by the U.S. government.”

The Dvash-Banks case has been wending its way through the courts for years. They were legally married in Canada in 2010, and their twin boys were born in 2016. In another case we have followed, Allison Blixt, a U.S. citizen, and her Italian wife, Stefania Zaccari, had two babies in London, England, where the moms also were legally married, according to a BBC report. Each woman conceived and gave birth using her own eggs and an anonymous sperm donor, with both moms’ names recorded on both babies’ birth certificates. When the family attempted to relocate to the United States, they were subjected to DNA testing. As in the Dvash-Banks case, the daughter who is genetically related to Blixt, the U.S. citizen, was granted citizenship; the daughter who is genetically related to Zaccari was denied citizenship.

As we wrote in 2018, the citizenship issue is not a new one for parents who have children via assisted reproduction abroad. The U.S. State Department’s long-standing policy is that “at least one biological parent must have been a U.S. citizen when the child was born” in order for a child to be automatically granted U.S. citizenship at birth.

In fact, during my tenure as its chair, the Assisted Reproduction Committee of the American Bar Association and the ABA Commission on Immigration produced a policy memo, urging the State Department to expand its interpretations of its Family Affairs Manual, which provides guidelines for family immigration and citizenship rights. In February 2017 the ABA ratified the resulting Resolution 113 (read more here).

… To this end, the Resolution recommends that State base its definition of child not on genetic and gestational relationship alone, but also on demonstrated “parental intent” to establish the necessary relationship to transmit or acquire U.S. citizenship. This approach is consistent not only with accepted canons of statutory interpretation, but also with interpretations of family law in many American and foreign jurisdictions confronting the parentage of children conceived through ART. Such a policy expansion by State would permit U.S. citizen parents to transmit U.S. citizenship to their children born abroad but conceived through assisted reproductive technologies when their parent-child relationship is legally recognized by the country of the child’s birth.

To date, the State Department has not implemented the changes recommended in the ABA Resolution. But although the State Department policy (that a child born in another country must have one parent who is a U.S. citizen in order for the child to be a U.S. citizen) applies to both LGBTQ parents and heterosexual parents, as we wrote last year, the Trump administration has put children of LGBTQ parents under additional scrutiny.

…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.

Today, as the department continues to define the children created via surrogacy with two married dads as born “out of wedlock,” the policy clearly does not comply with the Homeland Security guidance that married LGBTQ couples are entitled to the same citizenship and parentage rights as married heterosexual couples. Instead, by fighting in court, case by case, to deny U.S. citizenship to the children of LGBTQ parents born abroad, the State Department under the current administration guidance has been a willing participant in the Trump administration’s campaign to roll-back recently won LGBTQ rights.

So far, the courts have been a bright spot—from the recent Supreme Court decision protecting LGBTQ employees from being fired for their sexual orientation, to the series of federal court decisions that, like this one, defend the rights of married LGBTQ parents. One victory does not mean the end of Trump administration’s war on LGBTQ equality, but for those of us on the battleground it is reassuring to know that in the courts, at least for now, justice prevails.