Family Law

The State Department Goes For Broke in Its Fight Against ... Babies Of LGBTQ Parents

It's hard to understand why this would be a priority for the State Department.

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(Image via Getty)

First, in Good News…

On May 17, 2019, Taiwan’s legislature legalized same-sex marriage in the country, becoming the first country in Asia to do so. Congrats, Taiwan! Many are hoping Taiwan’s leap forward for LGBTQ equality will pave the way for other countries in Asia to follow. And what comes after love and marriage?  Babies in baby carriages.

Now, the Bad News…

Last week, I wrote about the Dvash-Banks case. In that case, twin boys were born via surrogacy to a same-sex male couple, and the government is currently maintaining that due to strict genetic considerations, one baby is entitled to citizenship, while the other is not. However, in that dispute, a federal district court held that the State Department applied a genetic requirement meant only for unwed parents, when the twin’s two dads were legally married under Canadian law. But rather than leave well-enough alone, the State Department has opted to appeal the ruling to the Ninth Circuit Court of Appeals. From there, it could go to the full appellate court en banc, and possibly all the way to the U.S. Supreme Court.

Last week, I wrote that I was surprised that the State Department would fight to deny this child U.S. citizenship, especially when his twin brother and legal father are U.S. citizens! And, you know, because it seems like there are a lot of bigger global issues for the State Department to tackle right now. But unfortunately, this is not an isolated event. Two other cases have been making headlines with similar fact patterns. Given the multiple cases with similar fact patterns, it seems like denying citizenship to babies born abroad to LGBTQ couples is actually a genuine priority of the State Department.

Genetically Related — But It’s Not Enough.

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Another head-scratching case is that of American citizen married couple, Roee and Adiel Kiviti. In 2016, the same-sex male couple successfully had a son delivered via surrogacy in Canada. That child had no problem obtaining a U.S. passport, fortunately. However, when the couple had a second child via a Canadian surrogate, they ran into significant problems. They were surprised by the documentation being requested by the embassy, and then ultimately the denial of U.S. citizenship for their daughter, Kessem.

In that case, the State Department similarly declined to apply the provisions of the Immigration Naturalization Act (the “Act”) that say nothing about a genetic requirement for married couples. Instead, they looked to the requirements for unwed parents, where a genetic connection is required. But this time, the parents actually met that requirement. But even that wasn’t enough. The child had to be genetically related to a U.S. citizen, and that citizen parent had to be present in the United States for five years prior to the birth. Unfortunately, while Adiel (Kessem’s genetically related father), originally from Israel, had obtained U.S. citizenship, he had not been present in the United States for a full five years prior to Kessem’s birth. So, despite both her parents being U.S. citizens, and her brother being a U.S. citizen, little Kessem is being denied citizenship.

That’s Not All!

It’s not just male same-sex couples, though. You can also be denied citizenship if you are child born abroad to two moms! In the case of Allison Blixt (a U.S. citizen) and Stefania Zaccari (an Italian citizen), the couple lived and married in London. With the assistance of a sperm donor, Zaccari gave birth to a son, and Blixt later gave birth to their other son. But upon their return to the United States, the couple was surprised to find that their child delivered by Blixt was granted U.S. citizenship, but his brother, despite having identical legal parents, was denied. Importantly, a federal district court judge ruled last week that their case could proceed to trial. Presumably, even if the couple wins, the State Department will yet again appeal that case as well.

Human Rights.

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I frequently write about these cases in Europe, and Singapore, and elsewhere where countries do not permit surrogacy and struggle with how to deal with children born of surrogacy. But even other countries that restrict surrogacy have generally come to the consensus that it is in the best interest of the child to have recognized parents, and to have the same citizenship of the parents. In fact, in Europe, the courts have found these to be fundamental human rights of the child. Of course, the U.S. government is not a party to the European Convention on Human Rights, but it’s never good to be on the wrong side of whether to grant a human right or not.

Obviously, the world is going through a lot of difficult turmoil right now. It’s hard to understand why this would be a priority for the State Department, when there are so many other, better candidates for agency resources. That’s particularly true since President Trump seems to be embracing same-sex marriage and families in his public comments. But here we are. If you want to know more about these heartbreaking cases, you can check out this excellent article by one of my favorite fellow assisted reproductive technology attorneys, Amira Hasenbush.

Ellen TrachmanEllen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.

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