In the summer of 2018, The Trump administration quietly changed how U.S. citizenship is acquired (or not) by children of U.S. citizens who are born abroad.
The laws regarding citizenship state a child born in another country is entitled to U.S. citizenship if their parents are married and at least one is a U.S. citizen.
However, the recent changes in policy at the State Department severely impact same-sex couples.
According to The Daily Beast, the State Department announced changes last summer to the department’s interpretation of a 1952 law, the Immigration and Nationality Act (INA). Eligibility for U.S. birthright citizenship is determined through the INA and the 14th Amendment.
The new interpretation now reads:
“The U.S. Department of State interprets the INA to mean that a child born abroad must be biologically related to a U.S. citizen parent. Even if local law recognizes a surrogacy agreement and finds that U.S. parents are the legal parents of a child conceived and born abroad… if the child does not have a biological connection to a U.S. citizen parent, the child will not be a U.S. citizen at birth.”
How exactly does this play out in real life?
Same-sex married couple Roee and Adiel Kiviti traveled to Canada to have children via surrogacy aka Assisted Reproductive Technology (ART).
Both are U.S. citizens. Even though Adiel was born in Israel, he became a naturalized U.S. citizen.
When they had their first child, son Lev born in 2016 in Canada, the family had no problem at the U.S. consulate in Canada obtaining Lev’s Consular Report of Birth Abroad, which is the legal equivalent of a birth certificate for Americans born outside the U.S.
But when their daughter Kassem was born in Canada this past February, after the Trump administration’s policy change, it was a different story.
The Kivitis were asked for their original marriage certificate, which they didn’t have on them at the time. Roee says he didn’t believe it would be a huge deal. He told The Daily Beast that, at the time, “we don’t have time for this, we’ll just deal with it in the U.S.”
So, they applied for and received Kessem’s Canadian passport (since she was born IN Canada) so she could travel, and headed back to the United States.
But the changes in policy now state that children born abroad via surrogacy – as opposed to being born in the U.S. via surrogacy – are viewed as being born “out of wedlock,” even if the parents are legally married, which the Kivitis are.
“They basically take our marriage, and they say ‘It doesn’t mean anything, your child was born out of wedlock,’” Adiel told The Daily Beast. “We were there when she was born, she took her first breaths in our arms. Make no mistake: We are her parents—we are her only parents on her only birth certificate.”
“Out of wedlock” means that those children have more challenges to face in acquiring birthright citizenship.
DNA tests must be submitted to prove a genetic connection to U.S. citizen parents; the parents have to testify they can support the child financially; and the parents must be able to prove they lived in the U.S. for a least five years before the child was born.
Meanwhile, families like the Kivitis find themselves in an immigration-limbo.
“Where is my child supposed to live? Is she supposed to go back to Canada?” asked Adiel rhetorically. “Can I live there? The scenario is just ridiculous. I cannot believe that these are the values of the American government.”
For now, there is a ‘work around’ for the Kivitis. When Adiel was naturalized, he was told future children who obtain a green card would be entitled to naturalization as well.
In that case, should Kessem obtain a green card she will be treated as a naturalized American citizen.
But her parents are angry they even have to search for a ‘backdoor’ solution.
“I’m not going to sit by and watch her get deported,” says Adiel. “But, there is a moral reason to have this fight, and not to cave.”
Instinct has reported extensively on the situation married couple Andrew and Elad Dvash-Banks found themselves when they decided to have children while abroad.
Canadian-American dual citizen Andrew and Israeli-born Elad married in Canada in 2011.
Wanting to have children, the couple engaged one woman to carry two donor eggs using both their sperm which led to their twins, Ethan and Aiden.
But when the family decided to move to the U.S., the rules said there has to be a genetic connection to a U.S. citizen for a child to have automatic citizenship.
DNA testing showed Aiden was the biological son of Andrew and Ethan was the biological son of Elad.
Even though the two parents are legally married, Elad’s lack of U.S. citizenship meant Ethan wasn’t entitled to citizenship.
To restate: one twin gets to be an American citizen, the other does not – even though they have the same parents who are married.
The couple sued and in February, District Judge Jon F. Walter ruled in the men’s favor. Walter led that the State Department was acting on a “strained interpretation” of the INA. He pointed out that the law does not contain any language “requiring a ‘blood relationship between the person and the father’ in order for citizenship to be acquired at birth.”
But the State Department, in the era of Trump, has appealed that ruling and the case now heads to the 9th Circuit Court of Appeals.
Aaron Morris, executive director of Immigration Equality, told The Daily Beast, “Once again, the State Department is refusing to recognize Andrew and Elad’s rights as a married couple.”
“This is settled law in the Ninth Circuit, which has already established that citizenship may pass from a married parent to a child regardless of whether or not they have a biological relationship,” he added.
When The Daily Beast approached the State Department with a list of detailed questions about the policy shift, a spokesperson responded, “The State Department does not comment on pending litigation or arbitration.”
The bottom line is this policy is disproportionately affecting LGBTQ married couples.
Make sure you head over to The Daily Beast for even more same-sex marriage couples’ experiences on their children’s citizenship.