Gay couple file lawsuit against US state department after baby denied citizenship

A married couple has been told that their daughter is ineligible for US citizenship despite the fact that they are both American citizens.

James Mize was born and raised in the US, while Jonathan Gregg was born in the UK to an American mother and a British father, and has dual citizenship. Gregg moved from the UK to the US in 2014, the couple married in 2015 and now reside in Atlanta, Georgia. 

Their daughter Simone was born in England in July 2018 following a gestational surrogacy arrangement with a friend and was conceived with a donated egg and Gregg's sperm. 

Following the birth of their daughter, Gregg and Mize discovered that it would be more difficult for them to obtain US citizenship for their daughter because only one of them was biologically connected to Simone.

Since Mize was not biologically related to Simone, her birth was designated as 'out of wedlock' by US State Department, triggering stricter qualifying criteria relating to Gregg's length of residence in the US. As Gregg had lived in the US for under five years prior to their application, he did not meet the qualifying threshold, and Simone's citizenship application was denied. 

Simone is now living in the US under a travel visa, which Gregg and Mize must regularly return to the UK to renew. 

The couple has filed a discrimination claim in federal court in Atlanta against the Secretary of State, Mike Pompeo. Their lawyers argue that the State Department's policy unfairly impacts same-sex couples who have had fertility treatment overseas. 

Children born outside of the US to married couples who are both citizens are automatically granted US citizenship if one parent has lived in the US. However, since Mize and Gregg are not both biologically related to Simone, the 'out of wedlock' criteria effectively invalidates their marriage for the purposes of their application, imposing more stringent residency requirements. 

The State Department argues that the law is not discriminatory as it applies to all couples who use surrogacy or donor gametes to conceive outside the US.  But in practice, the couple's lawyers have argued, heterosexual couples do not come under the same level of scrutiny and are not usually asked to prove genetic relatedness to their child. 

Talking to NBC News about their experience at the US embassy in London where the couple was denied a US passport for Simone, Mize said: 'In that moment, every anxiety I'd ever had in my life about being gay and different came into my body and I just wanted to cry.'