The Trump Administration issued new rules at the State Department regarding US citizenship for children born abroad. These rules are bringing the citizenship of LGBTI parents and non-traditional families’ children into question.
‘The U.S. Department of State interprets the INA (Immigration and National Act) to mean that a child born abroad must be biologically related to a US citizen parent,’ the State Department website reads.
Parents must also meet certain requirements to obtain citizenship for their children.
Requirements include proof of financial stability and being present in the US for at least five years before the birth.
The rules also give no leeway to children born via surrogacy or other Assisted Reproductive Technology (ART).
‘Even if local law recognizes a surrogacy agreement and finds that US parents are the legal parents of a child conceived and born abroad through ART, if the child does not have a biological connection to a US citizen parent, the child will not be a US citizen at birth,’ the website further states.
These rules are specifically making the lives of LGBTI parents and other non-traditional families more complicated.
‘Your child was born out of wedlock’
Married couple Roee and Adiel Kiviti recently ran into these roadblocks with the birth of their second child in February. Kessen, their daughter, was born in Canada via egg donor and gestational surrogacy.
‘They first indicated that they needed proof of our marriage, which I found quite odd,’ Roee told the Daily Beast.
Both men have US citizenship and a legal marriage — but because ART assisted Kessen’s birth, the State Department considers her born ‘out of wedlock’ under the new policy.
Adiel said: ‘They basically take our marriage, and they say “It doesn’t mean anything. Your child was born out of wedlock.”
‘We were there when she was born, she took her first breaths in our arms. Make no mistake: We are her parents—we are her only parents on her only birth certificate.’
Further, Adiel was born in Israel and became a naturalized US citizen recently. He falls just short of the five year requirement under INA, however. Due to this and Kessen being born ‘out of wedlock’, she now faces a question mark on her citizenship.
Another problem LGBTI parents face is the idea of ‘assumed parentage’.
A boy was born on a military base abroad to two women, one a former officer and the other a senior officer. They had to provide a mountain of paperwork and proof for genetic relationships and use of an anonymous sperm donor.
‘If we did [in-vitro fertilization] and were hetero, we could have a different egg and sperm that were not genetically related to us, but due to… the “assumption of parentage” which exists for married couples, they would not question the birth,’ the former officer told the Daily Beast.
Some couples, such as Stefania Zaccari and Allison Blixt, are taking legal action against the State Department when one of their children was granted citizenship but the other wasn’t.
‘When an opposite-sex couple applies for citizenship for their child, they go in with a marriage certificate and birth certificate and the government easily approves it without probing about how a child was created,’ said Aaron Morris, executive director for Immigration Equality, who’s representation Zaccari and Blixt.
‘For Allison and Stefania, it was one of the first things they were asked. As soon as they disclosed Lucas isn’t genetically linked to Allison, they immediately denied his application.’
A constitutional crime
Lambda Legal responded to GSN’s request for comment, calling this policy a violation of the Constitution.
‘The State Department’s policy is a clear example of the current administration’s efforts to attack LGBTQ people and their families,’ said Omar Gonzalez-Pagan, Senior Staff Attorney and Health Care Strategist at Lambda Legal.
‘Time and again, courts have recognized that same-sex couples are entitled to the same terms, benefits, and obligations of marriage as any other couple. By refusing to recognize same-sex couples’ marriages and the birthright citizenship of their children born abroad, the State Department has violated the constitutional rights of these families and the express language of our federal laws.’
GSN reached out to the US State Department for comment.