A fourth married, same-sex couple is suing the U.S. State Department for refusing to recognize the U.S. citizenship of their child—in this case, despite the fact that both parents are U.S. citizens. The department is treating the child as “born out of wedlock.”
Roee and Adiel Kiviti married in California in 2013. They had their daughter Kessem via surrogacy in Canada in February 2019. Because only Adiel has a biological connection to Kessem, the State Department is treating Kessem as “born out of wedlock,” meaning they will not grant her citizenship unless she has a biological relationship to a U.S. citizen parent who has resided in the U.S. for five years. Even though both of Kessem’s fathers are U.S. citizens, Adiel, who was born in Israel, falls one year short of the residency requirement. This residency requirement, however, is not meant to be applied to the children of married U.S. citizens, Lambda Legal tells us.
“Kessem was born to two dads. By refusing to recognize Kessem as a U.S. citizen at birth, the Department of State seeks to erase her family ties and to disrespect Roee’s and Adiel’s marriage. This is not only unlawful, it is also cruel and un-American,” said Omar Gonzalez-Pagan, senior attorney at Lambda Legal. “The Supreme Court has repeatedly affirmed that same-sex couples are entitled to the same constellation of benefits linked to marriage as different-sex couples. The government cannot refuse to recognize Roee’s and Adiel’s marriage, nor Kessem’s citizenship at birth.”
The Kivitis are therefore suing the State Department with the help of Immigration Equality, Lambda Legal, and pro bono counsel Morgan Lewis. They are at least the fourth couple to do so for similar reasons:
- Derek Mize and Jonathan Gregg, both U.S. citizens, filed a lawsuit against the State Department in July. They married in New York in 2015 and in 2018 had their daughter Simone via surrogacy in England. Both fathers are listed on her birth certificate. When they applied for recognition of Simone’s U.S. citizenship, however, the U.S. consulate in London rejected their application.
- U.S. citizen Andrew Dvash-Banks and his husband, Israeli citizen Elad Dvash-Banks, have been fighting the State Department for nearly two years because it recognized only one of their twin sons, biologically related to Andrew, as a citizen. The other, biologically related to Elad, they did not. Immigration Equality asserts that the law imposes no biological requirement, and the men’s marriage alone should be enough to grant both of their children citizenship.
- Moms Allison Blixt, a U.S. citizen, and spouse Stefania Zaccari, an Italian citizen, also sued the State Department in 2018. The two women met in New York when Stefania was there on vacation. When they decided they wanted to live together in the U.S., Allison could not sponsor Stefania for a visa because the Defense of Marriage Act (struck down in 2015) was still in place. The two women therefore moved to London, got married, and had two sons, Lucas and Massi. Allison was able to pass her citizenship to her children even though they were born abroad, but the U.S. State Department refused to recognize her marriage. It said Massi was Allison’s son and a U.S. citizen because she had given birth to him, but denied that Lucas, who was carried by Stefania, was Allison’s son.
The fight for marriage equality still isn’t over. The fight for our children still goes on.
