I’ll just start this in Great Debates and since it would end up here or in the Pit anyway.
A bi-national married gay male couple had twins by a surrogate and won a lawsuit to have both recognized as US citizens from birth. This is not consistent with how citizenship would be conferred to the children of a similarly situated straight couple who have children born by Assisted Reproductive Technology and Surrogacy abroad.
The NYT story is of a couple where one father is an citizen of Israel and the other is a citizen of the United States. They lived in Canada and sought out a surrogate to bear their children. Twins were born in Canada, with each of the couple genetically fathering one child. As the children were not born in the United States they were not eligible for jus soli citizenship.
The US State Department immediately recognized US citizenship of the biological child of the US citizen under the principle of jus sanguinis but denied US citizenship by birth of the other child. The other child could receive US citizenship by naturalization but that would require the couple to relocate to the United States in order to apply. Eventually the couple relocated to the United States but the one child was admitted on a tourist visa.
Suppose a hypothetical couple, Adam and Eve, are married and living in Israel. Adam is male and a US citizen. Eve is female and Israeli. Adam is infertile so the couple decides to use sperm donation and IVF to have children. Under current US policy donated genetic material is treated as not coming from a US citizen and a child born of such a pregnancy outside the United States would have no genetic relationship to Adam. As such US State Department policy would deny US citizenship by birth to such a child.
But under this court ruling if that couple was an analogous married gay couple living abroad, Adam the American and Steve the Israeli, then the genetic child born of the Steve via IVF would be a US citizen from birth.
Resolved, at last we have a real example of the elusive special treatment that gays are getting. Rare as a unicorn.
just change it so it dosent matter who or where the childs born … if the child has American parents via adoption surrogate or otherwise then there American and the rest is BS
But whats the point of this other than saying “the gays” got away with murder while pointing jumping up and down like a 8 year old ?
Is there any other country whose citizenship-at-birth laws are as complex as those of the US? Actual, genuine question. It’s neither jus solis (not everybody born in the USA gets USA citizenship, from US nationals to children of diplomats) nor jus sanguinis (citizenship doesn’t automatically get passed down to the children of citizens). Both paths are available but both have extra nits. And then, you need to be a citizen from birth to run for Prez.
I don’t think the fact that the couple were two males was “the point” of this case; the point would be that the twins got differential treatment. People with similar cases get dissimilar judgments all the time, specially in a legal system that’s not required to be internally coherent, but in order to say that a different-sex couple or a lesbian couple would always get a different result (that is, the non-citizen’s biological child would not be made a citizen while the citizen’s would) you’d need to talk about a case where there are two children, one from each of the partners. “One parent is a citizen, one is not, of a single child” is simply not the case here.
The newspaper report doesn’t really explain the basis for the ruling very clearly, but I’m not convinced that this is a case of “same-sex privilege”.
The allegation made by the plaintiffs , in fact, is the reverse: they claim that if they had been a same-sex couple (the OP’s Adam and Eve) with both their names on the children’s birth certificates no genetic testing would have been required by the State Department. It’s only because they were an opposite-sex couple that genetic tests were demanded, and these disclosed that one child had no genetic connection with the American citizen parent. For Adam and Eve, that would have gone unnoticed by officialdom.
Reading between the lines, the couple may have argued that the State Department’s policy of requiring genetic tests for same-sex couples but not for opposite-sex couples was unlawfully discriminatory.
But they may have won the case on different grounds. The judge “ruled that federal law does not require a child born to married parents to prove a biological relationship with both parents”, and that the State Department’s interpretation of the law [that a biological relationship is required] was “strained”.
That suggests, perhaps, that neither same-sex nor opposite-sex couples should face this problem in the future. So long as the couple is married and a child born with the involvement of a surrogate has a biological connection to at least one of the spouses, the child should be treated for citizenship purposes as the child of both spouses.
What struck me as particularly odd is a point the story did not focus on. Since the couple relocated to the United States the immigrant spouse would need a visa, presumably a K3, IR1 or CR1. Yes, spouses of American citizens do not automatically get a visa. And filing for a visa for the child of your immigrant spouse can be processed simultaneously with the spousal visa.
Yet they chose to file a lawsuit rather than petition for the visa for the child. They chose to request to be treated differently.
While children born of a marriage are generally considered to be children of both parents this is not the case with children born through use of Assisted Reproductive Technologies.
My personal dealings with US immigration are not tied to ART births, but we are going though a formal adoption of a child who has been in our care through guardianship. Without the adoption we have been told a DNA test would be required to establish a genetic relationship with me as the American parent - a genetic relationship I do not have. Costs a lot and it is quite a bit of effort but more than worthwhile because this is what we need to do for our son to comply with immigration law.
Have you considered, that, perhaps, the immigration law is stupid and the gay couple are not asking for preferential treatment but rather challenging a stupid law that’s uniformly stupid whether or not they were gay?
Regardless, this is an issue that disproportionally affects gay couples, among other minorities such as trans (trans people often end up sterile/infertile due to HRT) or intersex (often naturally unable to procreate) people. It affects opposite sex couples where one partner can or will not procreate with the other for whatever reason, naturally, but it’s not surprising this came up within the context of a same sex couple.
It’s a stupid rule. Same sex people shouldn’t have to deal with it. Opposite sex couples should not have to deal with it. Nonbinary people shouldn’t have to deal with it. Nobody should have to deal with it.
Now, the law makes sense* if, for instance, the child was produced before the relationship began, but that’s not the case here. In this case surrogacy was merely the means the couple chose to have a child that belongs to both of them. Essentially, for a couple that cannot have a blood child, this is the closest thing to that. I’m not sure, I don’t know the politics of this law when it was written and passed, nor the exact wording, but I honestly wouldn’t be surprised if this was, in fact, an unintended ramification of a law that was merely meant to prevent naturalizing children that were born outside the couple. That’s my speculation because it seems like such a bizarre, unexpected rule. I never would’ve even considered looking into it if I was abroad with a foreign spouse considering ART.
Not that I’m big on borders anyway, but accepting for the sake of argument the state of affairs where we need strong immigration law.
I think what you’re missing here is that the court rejected the State Department’s interpretation of 8 USC 1401 as inconsistent with the text and intent of the statute. That would apply to a (married) opposite-sex couple as well as to a (married) same-sex couple. I could be reading this wrong, but the Court didn’t say that the State department’s interpretation was wrong for gays; it’s just wrong.
There are (at least) two statutory provisions dealing with this issue: 8 USC 1401 (a/k/a Section 301) and 8 USC 1409 (a/k/a Section 309). Section 309 deals with children born out of wedlock. And, Section 301 has been interpreted to children born to married parents.
Section 309 is fairly straightfoward: children of American fathers born out of wedlock can be citizens or nationals of the US (subject to the rules for non-bastard children) if you can prove the biological relationship. So, if Adam the American isn’t the biological father of Surrogacy Baby and he’s not married to Steve the Israeli, then Baby is probably not a US citizen.
But, Section 301(g) only requires that a child (who is born outside of the United States) have one alien parent and one US citizen parent (who meets residency requirements). The State Department then went on to interpret 301(g) to mean that “born . . . of parents” requires a biological relationship between both parents and the child (or, most relevantly, between the citizen parent and the child). So, now, for both same-sex and opposite-sex married couples, you have an issue if the US citizen parent is not the biological parent (the “one kid but not the other” issue seems like it would most likely occur with same-sex couples, but I don’t know).
The Court says no. You only need to prove a biological relationship if the parents are unmarried. And Congress intended to treat bastard and non-bastard children differently in this situation, as indicated by the requirement of a “blood relationship” in Section 309 but not in 301.
Whether or not the Court is right, the holding is equally applicable to same-sex and opposite-sex couples: “Section 301 does not require a person born during their parents’ marriage to demonstrate a biological relationship with both of their married parents.”
Again, maybe I’m wrong, but I think that the point is that the Court rejected the State Department’s interpretation. It’s not special treatment; they just happen to be the plaintiffs.
That might be what the State Department manual says but according to the opinion:
That’s an incorrect interpretation of the statute.
and
It was a unilateral declaration by the state department that did not go through the normal process for rulemaking. That process includes publishing the proposed rule and allowing a notice and comment period before it is officially adopted. And the purpose of the comment period in part is to bring up just this sort of issue.
But even leaving those issues aside, there is another one. Let’s pretend that the state department is correct , and the child must be biologically related to the American citizen parent. But wait, that doesn’t work- because in 2014 the state department decided that a gestational mother could transmit citizenship as long as she was the legal parent.
So lets see
According to the state department:
American woman married to a non-American man - baby is a citizen even if she is the gestational mother not the biological mother as long as she is the legal parent.
American man married to a non-American woman - Baby theoretically is only a citizen if the man is biologically related to the baby.
However , does anyone really believe the State department demands DNA testing for all these couples to make sure there wasn’t a sperm donor or that mom wasn’t having an affair? I don’t. So effectively, the State department is willing to consider any child of an opposite - sex marriage to be a citizen so long as one legal parent is a citizen , but unwilling to do the same for a child of a same-sex marriage. Nobody is looking for special rights at all.
I have handled a case in which a U.S. citizen father was required to do a DNA test to provide the biological relationship to his child, but in that case he was not married to the non-U.S. citizen mother at the time of conception (although they were married as soon as she discovered she was pregnant). Also there was a huge age difference between the two, and not much other corroborating evidence of their relationship (as might happen if, say, you had a fling with a woman half your age and knocked her up on very short acquaintance)
But it does happen now and again that married fathers are required to prove a genetic relationship to their children for purposes of transmission of U.S. citizenship. It certainly isn’t the norm, though.
I wouldn’t be at all surprised if this couple had gone the route that they did to pave the way for other same-sex couples. Eva Luna, Immigration Paralegal
But doesn’t this simply recognize a basic reality? If Adam and Eve claim to be parents of a child, then that could allow for fraud, but the government cannot realistically have genetic testing of every child, and decides that Adam and Eve’s signature under penalty of perjury on a form is good enough to establish their biological relationship to the child.
However, if you have Adam and Steve, then you know by definition that at least one of those men has no biological connection to the child, so it makes some sense to do further investigation.
Can you explain again why the gay signatures aren’t good enough?
We take Eve’s word for it that she wasn’t cheating on Adam, but we don’t take Steve’s word for it that he was the sperm donor. Why is Eve more trustworthy than Steve?
Do they even do that - have Adam and Eve sign a form regarding their biological relationship to he child? Or do they just accept the birth certificate that lists Adam and Eve as the parents?
The birth certificate and paperwork surrounding it sort of is that. At least, in the mother’s case, it is, since there are various people who sign under penalty of perjury that they saw this woman give birth to this child. But obviously there’s no clear parallel for father.
When I wrote my name in the “Father” field and signed under penalty of perjury that everything was true and correct, was I making a biological claim or a social claim? Maybe both? (I mean, hopefully both, in my case).
When a U.S. citizen requests to have a child born abroad registered as a U.S. citizen, a requirement is applying for a Consular Report of Birth Abroad. Part of that process involves the parents and child appearing in person before a consular officer and swearing an oath. (The current version of the application is linked above.)
Yes, but I’m looking on that form for a statement that says anything about a biological relationship rather than a legal one or gestational one. And I don’t see it - although it appears the process does require a birth certificate.