A U.S. District Judge has ruled in favor of a male same-sex couple fighting the U.S. State Department after the government claimed their child born via a surrogate wasn’t a U.S. citizen.
The couple’s case is actually one of a handful of similar cases being fought in courts against the Trump administration’s policies against same-sex couples.
Roee Kiviti and Adiel Kiviti sued the State Department after it denied their child a U.S. passport by claiming their daughter wasn’t a U.S. citizen because she was born in Canada with no genetic relationship to one of her fathers.
The Kivitis are both naturalized U.S. citizens who were born in Israel: Roee has lived in the U.S. since 1982 and became a U.S. citizen in 2001. Adiel moved to the U.S. in May 2015 and became a U.S. citizen in January 2019. A surrogate gave birth to their daughter, Kessem, in Canada in February 2019 via Adiel’s sperm and a donated egg.
The State Department claimed that the couple’s child wasn’t a U.S. citizen because its biological father, Adiel, hadn’t lived in the U.S. long enough to satisfy its five-year residency requirement to be considered a U.S. citizen. But U.S. District Judge Theodore Chuang rejected the State Department’s thinking.
The legal snag creating problems for the Kivitis and other gay couples began in 2017 when the State Department changed its handing of the 1952 Immigration and Nationality Act (INA). Before 2017, under the INA, a child born to a married couple living abroad had a right to American citizenship at birth if one of their parents was an American citizen.
But in 2017, the State Department’s website declared, “A child born abroad must be biologically related to a U.S. citizen parent. Even if local law recognizes a surrogacy agreement and finds that U.S. parents are the legal parents of a child conceived and born abroad… if the child does not have a biological connection to a U.S. citizen parent, the child will not be a U.S. citizen at birth.”
The Kiviti’s case was similar to that of Andrew and Elad Dvash-Banks, a married American-Canadian and Israeli couple whose surrogate-born son was denied a passport when the State Department said he wasn’t American because he contained the Israeli-born father’s DNA.
The U.S. District judge in that case ruled that the law doesn’t require a person born during their parents’ marriage to demonstrate a biological relationship with both of their married parents.
A similar legal battle is also being fought in the courts over the Zaccari-Blixt family, a female same-sex couple with surrogate-born kids.
In all of these cases, the children would automatically be considered U.S. citizens if their parents were different-sex couples.
Immigration Equality executive director Aaron Morris, said, “It’s just really frustrating and cruel that [the State Department] won’t change this policy, especially when they’ve never articulated a single governmental interest that is served by the policy.”