Family Law

That Awkward Moment When Your Twin Brother Is A U.S. Citizen At Birth, But You’re Not… And Your Parents Sue The U.S. Government Over It

Deporting an 18-month-old baby doesn't further America’s national security interests.

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Twins Divided. You may recall the case of the Dvash-Banks family. I certainly do, because my article on their story last year has been shared the most times, by far, on social media of any of my articles. To refresh your memory, the case involves two gay men with two baby boys. Andrew, a dual U.S.-Canadian citizen, grew up in Los Angeles. While Andrew was studying in Israel, he met and fell in love with Elad. At the time, the United States did not recognize same-sex marriage. So the couple used Andrew’s status as a Canadian citizen to move to Canada. They legally married there, and, as married people often do, they decided to have children together.

Because they lacked eggs and a uterus between the two of them, the couple chose an anonymous egg donor, and turned to the assistance of a gestational surrogate. With the help of a fertility doctor, one embryo was formed with Andrew’s sperm, and one embryo was formed with Elad’s sperm. Both embryos were formed with the same anonymous donor’s eggs. The embryos were transferred to the uterus of the surrogate. And the surrogate successfully gave birth — to twins! Aiden and Ethan. Mazel Tov!

At that point, the family could have lived happily ever after in Canada, watching hockey and being unreasonably polite to people. But now, facing the crushing reality of having baby twins, the couple understandably wanted to move to Los Angeles to be closer to Andrew’s family. When Andrew received a job offer in L.A., the family started the process of moving. But that’s where the drama unfolded. The State Department informed the couple that only one of the baby twins — Aiden, born from Andrew’s sperm — would be considered a U.S. citizen. The other baby had no tie to the U.S. sufficient to establish citizenship. Devastated, Andrew and Elad reached out to Congressman Ted Lieu. But Congressman Lieu couldn’t overcome the State Department. So what does any good and true American do? Sue, of course.

Last week, with the help of the non-profit group Immigration Equality, and the normally very for-profit law firm Sullivan and Cromwell, the Dvash-Bankses filed suit against the U.S. government. (Of course, Sullivan and Cromwell is presumably taking this case pro bono.)

The Complaint. And Wedlock.  The complaint argues that by denying one of the baby’s citizenship, the State Department took a discriminatory stance against same-sex couples. Notably, the State Department reached its decision by applying section 309 of the Immigration and Naturalization Act (INA) for Ethan. That’s the section that specifically applies to children born out of wedlock, and therefore requires a blood relationship between the U.S.-citizen parent and the child. The Dvash-Bankses argue that the consulate should have instead applied Section 301(g), which applies to children born in wedlock, and does not require DNA-testing to prove the existence of a blood relationship. To be clear, Elad and Andrew held true to old-fashion norms and waited until after they were legally married in Canada before having kids. Given that history, the complaint points out that baby Ethan was denied U.S. citizenship purely based on the State Department’s “erroneous and demeaning classification” of Ethan as a child born out of wedlock. The suit contends that this kind of treatment constitutes “unconstitutionally unequal treatment of the children of same-sex married couples.”

They Aren’t The Only Ones. Immigration Equality also filed suit on behalf of another couple, Allison Blixt and her wife Stefania Zaccari. The case has a similar fact pattern, but with a married same-sex female couple. Blixt, a U.S. citizen, and Zaccari, an Italian citizen, each gave birth to one of their sons abroad.  When the couple went to apply for U.S. citizenship for their children based on Blixt’s U.S. citizenship, the State Department offered a similar crushing result. Blixt’s biological son Massi was granted U.S. citizenship, but his brother, Lucas, was denied U.S. citizenship. Ouch.

Lawyers Agree. This issue isn’t totally new. And tragically, the problem has caught a number of unknowing LGBT, as well as non-LGBT, parents in its net for years. As a reaction, two American Bar Association committees recently came together to release a major policy paper ratified by the ABA in February 2017. Unsurprisingly, the paper urges that the State Department expand its interpretation of the INA, to be more accepting of children born through assisted reproductive technology (ART).  And more specifically, to treat families and children equal under the law, regardless of their conception or the sexual orientation of their parents.

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Rich Vaughn, renowned L.A.-based ART law specialist and chairman of the ABA Family Law Section Committee on Assisted Reproductive Technology, explained, “No child is more wanted nor cherished than the child whose parents underwent the arduous process of assisted reproduction to bring him or her into the world. No child should be forced to forfeit citizenship because his or her family doesn’t conform to antiquated notions of family building and national heritage.”

#TeamEthan.  In the meantime, as noted in the complaint, “all of Andrew and Elad’s professional, personal, and familial commitments are in constant jeopardy of being undone if the Department of Homeland Security deports [their 18-month old son] Ethan.”

I will leave the broader immigration debate that the county is facing alone. For now, I’ll go out on a limb and just say that I don’t think that deporting an 18-month-old baby furthers America’s national security interests. So I offer a lot of credit to Immigration Equality and Sullivan and Cromwell. Hopefully, reason and justice will prevail, and baby Ethan will join us as a U.S. citizen shortly.

Ellen TrachmanEllen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, adoption, and estate planning. You can reach her at [email protected].

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