Is The U.S. Discriminating Against Gay Parents? Or Everyone With A Donor-Conceived Child Born Overseas?

The Immigration and Naturalization Act was intended to serve the best interests of the country, and specifically to keep families together. But the current interpretation is doing the exact opposite.

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In the last year, we’ve seen at least four lawsuits against the United States government alleging discriminatory immigration actions against same-sex married couples and their children. The most memorable of these cases is that of the Dvash-Banks family. In that case, the couple had twin baby boys — one was granted U.S. citizenship and the other was denied.

Brief Recap. The twins were born with the assistance of an anonymous egg donor and a gestational carrier in Canada. Both dads were declared the legal parents under Canadian law, and both appear on the boys’ birth certificates as parents. However, dad Andrew Dvash-Banks is a dual U.S.-Canadian citizen and dad Elad Dvash-Banks is an Israeli citizen. When the couple took the twins to the U.S. Consulate in Canada for U.S. passports, they were surprised by the ominous demand to provide a DNA report for each child. The couple returned with a report… that showed one twin was genetically related to Andrew (the U.S. citizen), the other to Elad (the Israeli citizen). The U.S. consulate would only agree to issue a U.S. passport to the twin genetically related to Andrew, the American citizen.

The Dvash-Banks brought a lawsuit against the U.S. State Department in federal district court, arguing that the State Department incorrectly applied part of the Immigration and Naturalization Act (the “Act”). That part, they said, applied only to unwed parents, and they, on the other hand, were very clearly wed. Since gay marriage is definitely a legally protected institution now, they argued that the denial discriminated against them and one of their sons by failing to recognize a legal marriage.

The district court ruled in favor of the dads, and ordered the State Department to issue a U.S. passport for the second twin. However, the State Department appealed, and we are currently awaiting further resolution.

This frustrating situation has played out over and over, with at least three other same-sex married couples having their children denied recognition of their U.S. citizenship because the State Department was applying the unwed section of the Act to their marriage.

Children of Married Heterosexual Couples Are Also Being Denied

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But wait. Is it discrimination against gay couples? While I haven’t seen a lawsuit yet from a heterosexual married couple, I was interested to hear from immigration attorney Emily Dudak Leiter of Wisconsin that the State Department is, in fact, applying the same part of the Act to opposite-sex married couples. Legally, that would be because the donor is considered a parent, and neither of the intended, legal parents of a child are married to the donor obviously. This is a possible result that I mentioned in this column, by referencing the phenomenon of “leveling down.”

Leiter reported that she has worked with multiple clients finding themselves with a child born abroad being denied U.S. citizenship for identical reasoning as that applied in the Dvash-Banks case. Leiter described how the State Department has interpreted the non-“out of wedlock” (aka “married”) provision of the Act to apply only when the genetic parents — the egg provider and the sperm provider — are married to each other, and are the parents of the child.

This is such a crazy concept; I am going to go ahead and repeat that. For immigration purposes, the State Department is only deeming the legal parents of a child to be “married” if they are both the genetic parents of the child. So if a married couple conceived with the help of an egg donation or sperm donation, despite being married and legal parents of the child, for U.S. immigration purposes they are not married. Seriously.

The implications are that the gamete provider is the parent of a child for immigration purposes regardless of the legal reality. This means, in theory, that *foreign* couples could receive an egg donation from an American egg donor, and their child will fall under the U.S. citizen mother provisions (which are more lenient and generous than the non-married citizen father provisions). Should we expect a run on U.S. citizen egg donations by non-U.S. couples?

When U.S. citizen parents get it “wrong” — for example, by the genetic U.S. citizen parent not having lived in the U.S. for the requisite number of years before the child’s birth — the consequences are severe. Leiter explains how the next best option may be to apply for a green card for their child while residing in the foreign jurisdiction. Wait times for those applications have jumped in recent years from a few months to more like 18-24 months. So it may be a long wait to go home with your child.

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Well, It Really Is Discrimination Against Same-Sex Couples

Despite Leiter’s clients falling into the State Department’s interpretation of the Act, there is little doubt that the application of the interpretation is being applied in a discriminatory manner. That’s because it is still up to the discretion of the State Department when to demand an applicant supply a DNA report. With same-sex couples, it has become routine for this additional documentation, with the obvious deduction that both parents are not genetically related to the child. With opposite-sex couples, of course, it is less obvious, and less likely to be requested.

The Act was intended to serve the best interests of the country, and specifically to keep families together. But the current interpretation is doing the exact opposite.

Of course, whether the policy is applied in a discriminatory or non-discriminatory manner is almost irrelevant. The State Department’s currently application is quite a stretch of a legal interpretation, and not in the parents’, the child’s, or our country’s best interest.


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.