The Trump administration has conceded a legal fight to prevent the children of some same-sex couples from becoming U.S. citizens after several devastating court losses.
Lambda Legal says that the State Department has withdrawn its appeal in Kiviti v. Pompeo, a case that it lost earlier this year and appealed in August. In a similar case, Mize-Gregg v. Pompeo, the State Department decided not to appeal a federal court ruling issued in August that said that the child of two men is a U.S. citizen.
“We are very relieved, on behalf of our daughter, on behalf of our family, and on behalf of LGBT families across this great country of ours,” said Roee Kiviti, one of the plaintiffs. “The law was always clear. We knew it, the courts knew it, and now the State Department knows it, too.”
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The issue is that the parents of a child born abroad to a U.S. citizen can go to a U.S. embassy and get their child’s U.S. citizenship recorded and a U.S. passport issued. For straight couples, only one parent has to be a U.S. citizen, even if the father listed on the birth certificate has no biological connection to the child (for example, if the straight couple conceived using donor sperm) because the Immigration and Nationality Act (INA) doesn’t mention a biological connection.
But when Derek Mize and Jonathan Gregg, who are both U.S. citizens, went to the U.S. consulate in England after their daughter was born to a surrogate mother in that country, they faced invasive questions about how their daughter was conceived and the embassy declared her to be born “out of wedlock” because neither Mize nor Gregg were married to the surrogate mother.
They said that while they were waiting at the embassy, they saw about 20 straight couples in similar situations get citizenship documents for their children with the same paperwork that they had and no one asked how the children were conceived or for proof of a biological connection between the children and their fathers.
“The U.S. Department of State interprets the INA to mean that a child born abroad must be biologically related to a U.S. citizen parent,” the State Department’s website was updated to say in 2017. “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.”
Mize and Gregg sued for their daughter’s citizenship and in August of this year a federal court in Atlanta ruled that their daughter was a U.S. citizen from birth.
This past June, a federal court ruled that the child of Roee and Adiel Kiviti is a U.S. citizen. Both of her dads are U.S. citizens and she was born in Canada with the help of a surrogate. The girl’s biological father is Adiel and he hadn’t been a U.S. citizen for five years before she was born, so the State Department argued that she couldn’t have birthright citizenship even though Roee has been a U.S. citizen for much longer.
In August, the Trump administration said that they were going to appeal the ruling, but now that appeal has been withdrawn.
“This was never just about us. It was always about standing up for what’s right,” Roee said. “We are grateful to those who did it before us, and we are humbled to be a part of the ongoing struggle for justice.”
The Kivitis’ 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.