How the USA's antiquated citizenship policies discriminate against families of same-sex parents

In 2013, the United States Supreme Court overturned the Defense of Marriage Act, a law denying recognition of same-sex marriages for federal purposes. Two years later, the Court identified a constitutionally-protected right of same-sex couples to marry. Meanwhile, gay and lesbian couples have increasingly relied on assisted reproductive technologies (ART) to create families. The State Department's citizenship policies for children born abroad through ART, however, are out of touch with these advances, leading to devastating denials of US citizenship for children born to American citizens in same-sex marriages.

The 1952 Immigration and Naturalisation Act (INA) defines eligibility for US birthright citizenship. It imposes different requirements for children born abroad depending on whether they were born to married parents or 'out of wedlock'. The birthright citizenship prerequisites for the latter category are more stringent, requiring, in part, a 'blood relationship between the US citizen father and child'. 

For children born to married parents, the statute says nothing about biological connections between children and their parents. Despite this silence, US State Department policy requires a child born abroad to be 'biologically related to a US citizen parent' and defines born 'in wedlock' as 'the child’s biological parents were married to each other at the time of the birth of the child.'

These problematic interpretations of the INA complicate birthright citizenship for children born abroad through ART. They can be denied US citizenship if they are not biologically related to their US parent. They can also be burdened with the stricter citizenship requirements of children born 'out of wedlock' if they are not biologically related to both legal parents, even if their parents are married.

Although the State Department updated its policy in 2014 to treat a gestational and legal mother as biologically connected to the child when an egg donor is used, its citizenship policies remain antiquated. In theory, this is a problem for all couples. In reality, it disproportionately affects same-sex couples.  

For example, a married, Israeli-American gay couple had twin boys while in Canada. Aiden was the biological child of his American father Andrew, whereas EJ was the biological child of his Israeli father Elad. Since neither son was biologically related to both parents, the State Department treated the children as born 'out of wedlock' and therefore required a 'blood relationship' between the US citizen father and child. Both men were the legal parents of their sons, but for citizenship purposes, only Aiden, Andrew's genetically related son, was declared a US citizen. In contrast, EJ was denied US citizenship.  

This policy has also harmed lesbian couples. One American-Italian couple had two children, one carried by the Italian mother, the other by the American mother. Because neither child was biologically related to both married parents, both were deemed to be born 'out of wedlock'. Only the child whose genetic mother was American was granted birthright citizenship.  

The State Department has claimed in recent court filings that its officers must examine all ART cases closely, 'irrespective of sex or sexual orientation of the legal parents'. Theoretically, its policies apply to both same-sex couples and opposite-sex couples using ART. The children of same-sex couples, however, are especially vulnerable to these citizenship hurdles and potential barriers because their use of ART is obvious in a way it isn't for opposite-sex couples.

Lesbian couples can have a child 'in wedlock', but only if one mother provided the egg and the other gestated the pregnancy. A male couple, however, is completely unable to meet the 'in wedlock' test because it is impossible for both men to be biologically related to the child.  

This policy can lead to grossly unfair results. Take, for example, a married gay couple, both US citizens, who had a son and daughter in Canada using a surrogate and egg donor. After successfully establishing US citizenship for their son in 2017, they ran into difficulties this year trying to do the same for their daughter. Because only one parent was genetically related to her, the State Department treated her as born 'out of wedlock', despite their marriage. Although her genetic father was a naturalised US citizen, he had not lived in the USA for the minimum five years required for 'out of wedlock' children. As a result, the State Department determined that their daughter – the legal child of married US citizens and the sister of a US citizen – was not entitled to US citizenship.   

While many blame the Trump Administration for the denial of citizenship to children of married, same-sex couples, the policy requiring a biological connection between a US parent and child was in place before this administration. In fact, after DOMA was overturned in 2013, Immigration Equality, a leading LGBTQ immigrant rights organisation, began to hear about such denials of citizenship.

In contrast, the 'in wedlock' provision may be a product of the Trump administration, given that it first appeared in publicly-available State Department documents in the last year or so. However, because the department does not always make its policies publicly available, one cannot determine definitively when, and under what administration, this problematic interpretation arose.  

Ultimately, State Department policy reflects an unwillingness to presume the legitimacy of children born to married, same-sex couples. Moreover, it conflicts with federal appellate court rulings that find the INA does not require children born to married, opposite-sex parents to demonstrate biological relatedness to their US citizen parents. Such a presumption of legitimacy should apply equally to children born to married same-sex couples. After all, the Department of Homeland Security states that '[j]ust as [U.S. Citizenship and Immigration Services] applies all relevant laws to determine the validity of an opposite-sex marriage, we will apply all relevant laws to determine the validity of a same-sex marriage'.

So far, the courts seem to agree. The lesbian American-Italian couple's legal challenge to the denial of citizenship of their child has been allowed to go forward. Even better, a federal judge ruled in favour of Andrew and his son, EJ, describing the State Department's interpretation of the INA as 'strained' and inconsistent with treatment of opposite-sex couples (1). Unfortunately, the USA is appealing the ruling.

In aggressively defending its outdated interpretation of the INA, the Trump administration has shown its unwillingness to bring citizenship law into the twenty-first century by fully recognising same-sex marriage and ART. We may have to rely on the judiciary to remedy these inequalities, just as we have done with many other discriminatory policies of this administration.