A federal court has ordered the U.S. State Department to recognize the U.S. citizenship of a child born to two U.S. citizen dads abroad—something the department had refused to do for more than a year. But several similar cases involving same-sex parents and their children are still pending.
Roee and Adiel Kiviti married in California in 2013, and had their daughter Kessem via surrogacy in Canada in February 2019. Because Kessem was born outside the U.S. and only has a biological connection to Adiel, however, the State Department considered Kessem as “born out of wedlock,” even though her dads were legally wed. The department would not grant her citizenship unless she had a biological relationship to a U.S. citizen parent who had resided in the U.S. for five years. Even though both Roee and Adiel are U.S. citizens, Adiel was born in Israel and was one year short of the residency requirement.
The dads sued the State Department with the help of Lambda Legal and Immigration Equality and pro bono counsel Morgan Lewis, arguing that the residency requirement was not supposed to be applied to the children of married U.S. citizens. Yesterday, the U.S. District Court for the District of Maryland ruled that Kessem should be granted citizenship and that the statute that formed the core of the State Department’s argument “does not require a biological relationship with both parents.”
Judge Theodore Chuang, writing for the court, agreed, explaining, “A child could fairly be deemed to originate from parents other than through a genetic relationship, such as where two married parents both play a fundamental and instrumental role in the creation of the child, for example by, as here, together planning and supporting the use of surrogacy and ART [assisted reproductive technologies] to bring about the birth of a child to whom they have both committed in advance to be a parent.”
Damn right.
Roee and Adiel Kiviti said in a statement, “We are tremendously relieved that the court recognized what we always knew: that our daughter was a U.S. citizen by birth. We are proud we taught our little girl to stand up for what’s right even before she could crawl. No child should be denied her rights because her parents are LGBT, and no family should have to endure the indignity we did.”
At least three other same-sex couples have also sued the State Department for similar reasons:
- Derek Mize and Jonathan Gregg, both U.S. citizens, filed a lawsuit against the State Department in July 2019. The couple 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. The U.S. District Court for the Northern District of Georgia heard oral arguments in the case this past May.
- U.S. citizen Andrew Dvash-Banks and his husband, Israeli citizen Elad Dvash-Banks, have been fighting the State Department since 2017 because it recognizes only one of their twin sons, biologically related to Andrew, as a citizen. The department has refused citizenship to the other, biologically related to Elad. Their case is now before the U.S. District Court for the Central District of California Western Division.
- 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 that Lucas, who was carried by Stefania, was not Allison’s child and could not become a citizen. Their case is now before a district court in New Jersey.
Since each of these four cases is in a different district, each court may rule differently—the ruling in the Maryland case doesn’t set precedent for them—but I have to think that the Kiviti’s win is a good sign. Two wins for LGBTQ equality in one week. Who’d’ve thought?
