The Biden administration has ended a Trump-era policy that denied American citizenship to same-sex couple’s children born abroad via surrogacy or in vitro fertilization. The State Department will resume automatically granting citizenship as it did before former President Donald Trump (R) changed the policy.
The Trump administration classified the children as “born out of wedlock” to deny them citizenship.
Related: Here are the 5 steps gay men should follow if they’re considering surrogacy to start a family
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.
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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. Embassies didn’t ask for proof that the father in a straight couple had a biological connection to the child, even though they demanded gay couples show that proof.
The Trump administration was sued by multiple couples who ran into roadblocks re-entering the country with their children. The State Department lost each time but continued to enforce the policy.
In 2019, gay dads Andrew and Elad Dvash-Banks and their two sons made headlines when a federal judge ruled in their favor.
Because Elad’s sperm was used to create one of their sons, and only Andrew is an American citizen, that son couldn’t get an American passport while the other did. But they took their case to court.
“The basis for the State Department’s imposition of a biological requirement is its strained interpretation” of immigration law, the judge wrote.
The State Department has now instructed all U.S. diplomatic posts to grant citizenship if the parents are married and one of the parents must have a genetic or gestational tie to the child. The change is retroactive.
