Two same-sex couples filed lawsuits last week against the U.S. State Department, arguing it unlawfully discriminated against them by denying their children U.S. citizenship.
The cases join a host of others involving reproductive technology and same-sex parenting working their way through the U.S. court system. Since the Supreme Court’s 2015 Obergefell decision declaring same-sex marriage a constitutional right, LGBT advocates have been pushing back against laws that uphold the biological reality that every child is the genetic offspring of just one man and one woman and that a biological connection carries weight.
A State Department policy about foreign-born children does just that by requiring that a child be biologically, not just legally, related to a U.S. citizen to gain citizenship.
That requirement posed a problem for Elad and Andrew Dvash-Banks, married in Canada in 2010. Elad is an Israeli citizen; Andrew is an American. In 2016, they hired a gestational surrogate in Canada to carry two embryos conceived from donor eggs and each of their sperm. In September 2016, the surrogate delivered two boys: Ethan, who is biologically related to Elad, and Aiden, who is biologically related to Andrew.
Shortly after the boys’ birth, the couple decided to move to Los Angeles. But when they brought the babies to the U.S. Consulate in Toronto to apply for passports, officials told them they needed to undergo DNA testing to determine the biological relationship of each boy to Andrew, the U.S. citizen.
State Department regulations allow a child born abroad to a U.S. citizen and an alien to attain citizenship only if the U.S. citizen is the “genetic or the gestational parent” of the child.
The couple submitted DNA test results, and soon after the State Department issued a passport to Aiden but not Ethan.
In the lawsuit filed on Monday, the couple argued the State Department unlawfully discriminated against them and their toddler, because they were a same-sex couple.
“If a mother and father walk into a consulate and have a marriage certificate and birth certificate, they’re never asked any questions about the biology of the child,” said Aaron Morris, executive director of Immigration Equality, the LGBT immigrant advocacy group that filed both lawsuits. Morris and the Dvash-Bankses believe the State Department should treat the children of same-sex couples the same as the children of opposite-sex couples with no questions asked.
But that is asking the State Department to ignore biology, noted Peter Sprigg, a senior fellow for policy studies at the Family Research Council.
“The position of this couple, and this argument, seems to be that the law can and should redefine biological reality,” he said. Opposite-sex married couples are assumed to be the biological parents of their child because it is very likely the biological truth. But it is impossible for a child of a married same-sex couple to be biologically related to both parents.
Sprigg argued that the current State Department rules consistently — and without discrimination — limit citizenship to children who have either a blood relationship or an adoptive relationship to a parent who is a U.S. citizen: “It’s not a question of discrimination; it’s a question of is there a biological relationship or is there not?”
The legalization of same-sex marriage should not influence that question, he said, though Sprigg noted this is one of the reasons why he and others opposed the legalization of same-sex marriage — because marriage, in addition to being God-ordained, is a social institution rooted in biological complementarity.
The other case, filed in Washington, D.C., involves a married lesbian couple in London — one U.S. citizen and one Italian citizen — who have two children but only one related to the U.S. citizen.
— by Kiley Crossland