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 extending 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.”