Legal and Biological Borders: Citizenship Consequences for Children of Same-Sex Couples

In 2010, Andrew Banks, an American-Canadian dual citizen, and his husband, Elad Dvash, an Israeli citizen, married in Canada and decided to have children using a gestational surrogate and an anonymous egg donor. In 2016, the surrogate gave birth to twin boys, one created with Andrew’s sperm and the other with Elad’s. Like many married couples, they intended to raise the children together and are listed as the parents on both birth certificates. However, after the couple decided to move to California, the U.S. State Department denied American citizenship to Elad’s biological son, while recognizing the American citizenship of his twin brother [1]. 

Even though the Supreme Court found in Pavan v. Smith, a 2017 Supreme Court case, that both partners in a same-sex marriage are their child’s legal parent, even if one child is not biologically related, the State Department’s citizenship policy has failed to catch up. Currently, the State Department only grants children immigrating to the United States citizenship if they are biologically related to the American parent, regardless of their parents’s marital status [2]. Yet, same-sex couples usually build their families through non-normative means, such as surrogacy and in vitro fertilization. Despite what the State Department may think, using technology to reproduce does not make these families any less real. The Dvash-Banks case illuminates how the State Department abuses bureaucratic policy to prefer children biologically related to both married parents and how the government manipulates citizenship law to enforce heteronormativity within the American nation state. 

The Dvash-Banks’ subsequent suit, Dvash-Banks v. United States Department of State (2018), comes in a procession of recent legal battles brought by gay and lesbian couples fighting for equal rights and recognition. In United States v. Windsor (2013), the Supreme Court extended equal protection under federal law to same-sex couples already married in states where same-sex marriage was legal [3]. Following this decision, the Department of Homeland Security announced that for purposes of immigration, same-sex married couples would be treated the same as opposite-sex married couples [4]. In Obergefell v. Hodges (2015), the Supreme Court legalized same-sex marriage across the nation. Noticably, the Court paid specific attention to the effects on children, thus setting the framework for protecting queer families, not just couples. In stating,“gays and lesbians can create supportive, loving families,” the Court recognized the normalcy of same-sex couples who raise children [5].  

More recently in Pavan v. Nathaniel Smith (2017), the Court ruled that when a child is born to a married same-sex couple, it is unconstitutional for a state to list only the biological parent’s name on the birth certificate. Therefore, the Court reaffirmed Obergefell, concluding that married same-sex couples have access to the “constellation of benefits that the State has linked to marriage.” [6] Included in these benefits is the recognition that both partners can be a child’s legal parent, even if one is not biologically related. Therefore, the legal precedent has solidified legal rights affording same-sex couples the ability to marry and raise children as a recognized family unit. However, the State Department refuses to meet these rights by denying citizenship to children like Elad’s biological son.    

Although the Fourteenth Amendment ensures citizenship for those born within the United States, the Immigration and Nationality Act (INA) governs citizenship law for those born abroad. Passed in 1952, the INA was part of a broader movement aimed at the criminalization of homosexuality. The United States consistently limited sexual difference through federal regulation and bureaucratic oversight by enacting policies “that explicitly used homosexuality to define who could enter the country and be naturalized,” according to scholar Margot Canaday [7]. To embrace this anti-LGBT movement, the INA included a “moral turpitude” provision, which was meant to target homosexual individuals, making it harder for them to enter the U.S. and easier for them to be deported. Though both the legal and social climates have evolved since the enactment of the INA, the State Department’s refusal to recognize Andrew and Elad’s son, along with others like him, as U.S. citizens ties back to an era opposed to the expression of queer identities. 

Furthermore, the INA does not specify a biological requirement for children of an American to become a citizen: it only requires that the child is “born in wedlock” and that one of their married parents is a U.S. citizen who has lived in the U.S. for at least five year [8]. However, the State Department interprets the phrase “born in wedlock” to refer to a child who shares a biological relationship with both parents [9]. When interpreting the phrase of  “born in wedlock” to refer to a child who shares a biological relationship with both parents, the State Department explicitely targets same-sex families by denying the common means through which same-sex married couples build their families. Furthermore, their interpretation of the INA purposefully ignores how legal precedent and constitutional requirements provide equal protection to queer families, regardless of DNA.

When the State Department denies the rights afforded married parents to same-sex couples, they violate the Fifth Amendment and discriminate on the basis of sex and sexual orientation [10]. The Due Process Clause of the Fifth Amendment prohibits the federal government from depriving people of their rights without due process of law. But, the State Department deprives same-sex couples of their rights to acquire and confer citizenship through married parentage pursuant to section 1401 of the INA, therefore, denying queer families due process of law. By requiring that children must be the biological offspring of the American parent, the State Department is illegally targeting same-sex couples who have built their families through non-normative means and preventing the children of these legaly-recognized families becoming American.

Most consequentially, the failure to define children born to same-sex married parents as being born in wedlock enforces heteronomativity in law, valuing traditional familial relationships of blood over the bonds built between family members in non-traditional homes. Legal scholars have since argued that enforcing such heternormative enforcement of the law “runs counter to the current societal understanding of what marriage is, and probably more important, it runs counter to the current legal definition of what parentage is.” [11] Although Congress did not include explicit provisions for same-sex couples conceiving abroad when the INA was drafted, cases like Obergefell and Pavan have since extended legal definitions of family to apply equally to same-sex marriages. Yet, the State Department continues to enforce mid-20th century legal interpretations that unconstitutinoally discriminate against queer families. 

The decision of who gets to become a citizen and who is othered is crucial to the identity of a nation. Citizenship is a sign of symbolic acceptance in the process of constructing a community and the recognition of rights that one has within that community [12]. When a child is born abroad, the ability to pass citizenship from parent to offspring is necessary for the child to have the same recognition and rights from the state. For Andrew and Elad’s son, the denial of citizenship not only separates their family, but demonstates how equal protection and due process of law remains uncertain for same-sex couples. In accordance with the legalization of same-sex marriage and current social awareness that families come in many shapes, sizes, and nationalities, the legal interpretations and procedures around citizenship law need to be reimagined. Biology is not the only bond between a parent and child: the United States needs to officially recognize other, equally important bonds in order to unite and legitimize queer immigrant families.

[1] Shulman, Maya. “How INA Poses Hurdles In Int’l Surrogacy Cases.” Law 360, June 20, 2019. www.law360.com/articles/1171089/how-ina-poses-citizenship-hurdles-in-int-l-surrogacy-cases.

[2] Pavan v. Nathaniel Smith, 576 U.S. 2590 (2017).

[3] United States v. Windsor, 133 U.S. 2675, 2693 (2013).

[4] Napolitano, Janet. “Same-Sex Marriages.” U.S. Citizen and Immigration Services. Department of Homeland Security, July 2, 2013. https://www.uscis.gov/family/same-sex-marriages. 

[5] Obergefell v. Hodges, 135 U.S. 2590 (2015).

[6] Pavan v. Nathaniel Smith, 576 U.S. 2590 (2017).

[7] Canaday, Margot. The Straight State: Sexuality and Citizenship in Twentieth-Century America. Princeton University Press, 2009. 3.

[8] Immigration and Nationality Act, 8 U.S.C. §§ 1401-1409 (1952).

[9] "Chapter 3 - United States Citizens at Birth (INA 301 and 309)." United States Citizen and Immigration Services. June 06, 2019. Accessed August 07, 2019. https://www.uscis.gov/policy-manual/volume-12-part-h-chapter-3#footnote-11.

[10] Dvash-Banks v. United States Department of State, 523 U.S.D.C. (2018).

[11] Mervosh, Sarah. “Both Parents are American. The U.S. Says Their Baby Isn’t.” New York Times, May 21, 2019. www.nytimes.com/2019/05/21/us/gay-couple-children-citizenship.html.

[12] Bosniak, Linda. “Persons and citizens in constitutional thought.” International Journal of Constitutional Law, Volume 8, Issue 1 (2010): Pages 9–29. https://doi.org/10.1093/icon/mop031.