Family Law

USCIS’s New Immigration Policy For Families Through Fertility Assistance Is Good, But Not Great

If a U.S. citizen is the legal parent of a child, without a genetic or gestational connection, and the INA doesn’t require those elements, why is the new policy requiring them?

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Well, it’s been a tough week for the Biden administration. And the world. But not everything has been bad lately. On August 5, the U.S. Citizenship and Immigration Services (USCIS) issued a policy alert on the subject of “Assisted Reproductive Technology and In-Wedlock Determinations for Immigration and Citizenship Purposes.” Sound exciting? It is!

For those following the related issues and heartbreaking stories of children being denied U.S. citizenship despite the U.S. citizenship of their parents, this update is long overdue. And while the newly updated policy is a vast improvement, unfortunately it still doesn’t reflect what the law actually says and doesn’t go far enough to protect U.S. families and the children who should be entitled to U.S. citizenship.

The Problem. The U.S. immigration code, or specifically, the Immigration and Naturalization Act (INA), has separate standards for determining U.S. citizenship for children — born abroad to U.S. citizen parents — “out of wedlock” versus those born not out of wedlock (presumably “in-wedlock,” although the INA doesn’t actually use that term or my preferred term of wedlockedborn).

A few years ago, the government started applying a policy to children born abroad to same-sex married couples (and theoretically, possibly, different-sex couples, maybe) that argued that a child was only born in-wedlock if both parents were genetically related to the child. That, of course, is not quite possible, yet, if both parents are of the same sex. So regardless of marital status, the government was applying the more difficult-to-meet out-of-wedlock immigration provisions to children of same-sex couples born abroad.

This situation was especially stark and shocking in the case of Aiden and Ethan Dvash-Banks, twin boys born by surrogacy in Canada to a married same-sex male couple. Despite their birth certificates and the Canadian government recognizing that both children were equally the sons of both dads, the U.S. government demanded DNA testing. It then proceeded to grant only one twin U.S. citizenship, and deny U.S. citizenship to the other.

This heartbreaking story happened to a number of other couples and their children as well. Check out my favorite podcast interview with Mississippi-native Derek Mize and U.K.-raised Jonathan Gregg, telling the dramatic story of their daughter’s initial denial of U.S. citizenship and their legal battle on her behalf.

Fortunately for these families, judge after judge has ruled in favor of their family and against the U.S. government’s interpretation of the INA. So it was about time the policy was updated.

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What Does The New Policy Say?

The policy alert explains, “The USCIS now considers a child to be born in wedlock when the child’s legal parents are married to one another at the time of birth and at least one of the legal parents has a genetic or gestational relationship to the child. USCIS defines “child” to include the child of a U.S. citizen parent who is married to the child’s genetic or legal gestational parent at the time of the child’s birth if both parents are recognized by the relevant jurisdiction as the child’s legal parents.” Definitely a positive step. That interpretation would have worked for the Dvash-Banks twins, as well the Mize-Gregg family and the other prominent cases regarding the prior administration’s faulty interpretation. Yay for positive progress.

But Wait, That’s Not What The Immigration Code Actually Says

The INA’s requirements for conferring citizenship on a person born outside of the United States based on the parents’ U.S. citizenship is worded just as the person being “of parents.” There actually isn’t a genetic or gestational requirement in the code. For most families, one or both components tends to be present. However, with the growing use of assisted reproductive technology, and especially the increasingly used option of embryo donation, the genetic or gestational component may not always be part of the story.

If a U.S. citizen is the legal parent of a child, without a genetic or gestational connection, and the INA doesn’t require those elements, why is the new policy requiring them? Why not base citizenship on the legal parent-child relationship, without the additional requirements? The broader interpretation would be consistent with the law, and inclusive of all children of U.S. citizen parents.

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But Forget The Current Law

While being true to the law would be better than the old policy interpretation and the new policy interpretation, what would be even better would be to change the law! Why is there a difference between married and unmarried parents when it comes to a child’s citizenship? That’s so 20th century. Let’s eliminate marital status discrimination from the U.S. immigration code and treat children — regardless of the marital status of their parents — equally, and in the light most favorable to the best interests of the child and family unity.

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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