Family Law

Elections Have Consequences: Here, Good Ones, For Mixed-Citizenship LGBTQ+ Families

But does the new administration's interpretation of the immigration code go far enough?

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It’s about time. For years, we have witnessed cases of families threatened to be ripped apart by a bizarre interpretation of the immigration code by the U.S. government. On May 18, 2021, the Department of State announced that it had updated its interpretation, and its application of the immigration code in order to take into account “the realities of modern families and advances in ART (assisted reproductive technology)” from when the law was enacted in 1952.

What Was The Problem?

One of the first and most prominent cases under the previous administration’s interpretation of the immigration code became high-profile news with the Dvash-Banks twins. The dads were a married couple living in Canada when the babies were born, conceived with the assistance of an egg donor and surrogate. As shown on the babies’ birth certificates, and per Canadian law, both dads were equally parents of both of their twin children. However, when the family looked to move to Los Angeles to be closer to family, the U.S. consulate had some very pointed questions about the citizenship of the dads and the genetic connection between the dads and their babies.

One dad, Andrew Banks, was a dual U.S.-Canadian citizen, while the other, Elad Dvash, was an Israeli citizen. Each was genetically connected to one of the twin children. After requesting and gathering DNA testing on the children, the U.S. government granted citizenship to the twin genetically related to the U.S. citizen, but denied citizenship to the child genetically related to the Israeli citizen. (Despite both children having the exact same legal parents!)

Okay, that’s a tragedy. But to reach such a heartbreaking outcome, surely that was what U.S. immigration officials were forced to say under the law, right? Akshually …. no, not at all. One section of the immigration code provides that a child born “of parents,” where one parent is a U.S. citizen, and the parents are married, receives U.S. citizenship at birth. So we should be all set then right? A simple misunderstanding that’s’ easy to fix? Of course, nothing is ever that simple in immigration law.

Another section of the immigration code addresses the children of “unwed” parents, and has a different set of requirements. In that section, one parent must have U.S. citizenship, plus meet a specific residency requirement relating to that parent, in order to pass citizenship to a child born abroad. In order to grant only one twin citizenship in the Dvash-Banks case, the Department of State had to argue that the family fell under the unwed section of the immigration code — despite the dads being, you know, wed — and only count the genetic parent as a parent under the immigration code.

Worse, the policy appeared to be selectively enforced, given the nature of conception and family building by same-sex couples generally. To be fair, the U.S. government was right that the interpretation was neutral on its face, since it applied equally to same-sex and opposite-sex couples on paper. But there was no legal requirement for the Department of State to ever ask, in real life, whether parents were genetically related to their child. As you can guess, that just happened to come up a lot more when the couple was gay.

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Unfortunately, the Dvash-Banks case was not an isolated incident, but one of many where the U.S. government denied citizenship to a child born abroad, even though the child would have received citizenship at birth if the U.S. government had used the “wed” section of the immigration code for the child’s married parents. For a detailed account of another family’s harrowing story of being caught in this discriminatory interpretation, check out this podcast interview with dads Derek Mize and Jonathan Gregg.

Courts Agreed That The Discriminatory Interpretation Never Made Sense (And Was Likely Unconstitutional)

In response to the government’s interpretation and the devastation wrought on a number of U.S. families, nonprofit and for-profit organizations alike stepped up. Immigration Equality led the charge, supported by the likes of Lambda Legal and the Biglaw firms Sullivan & Cromwell and Morgan Lewis. The Dvash-Banks family filed suit, and won, against the government in district court. And, again, when the government appealed to the 9th Circuit.

In even more of a nail biter, the Mize-Gregg case faced a Trump-appointed judge in the heart of the Deep South. But, again, the family prevailed against the government’s limiting interpretation. The judge found that the couple’s daughter was entitled to citizenship at birth. In short, judges of all stripes agreed on one thing: the State Department was wrong.

Does The New Interpretation Go Far Enough?

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So far, so good right? Yes, but there’s a catch. The newly announced policy provides that “Children born abroad to parents, at least one of whom is a U.S. citizen and who are married to each other at the time of the birth, will be U.S. citizens from birth if they have a genetic or gestational tie to at least one of their parents and meet the [immigration code]’s other requirements.” Yay, to being a much broader interpretation than requiring both parents to be genetically related to their child!

But that still isn’t really what the law says! The law says “of parents” who are married. There is no genetic or gestational connection required by the statute. To be true to the law, the Department of State should require only a legal relationship of parenthood to a U.S. citizen, not one of genetics or gestation. The new interpretation excludes families who conceive their child abroad with the assistance of donated gametes, or a donated embryo, and a surrogate. So although the new interpretation is a definite improvement, the US could do even better.

Ellen 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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