It is no secret that the LGBTQ community has faced discrimination throughout history in the United States. Though the monumental decision in Obergefell v. Hodges, which established a fundamental right to marriage and ultimately legalized same-sex marriage in the U.S., was a giant tally in the equal rights column, the fight for equality in many aspects of the law remains at issue. One example, specifically, is the discriminatory effect U.S. immigration laws have on non-traditional families whose children are born outside of the U.S., whether by choice or circumstance. This is issue that has come to a head recently — let’s take a look at the scope of the issue, and how LGBTQ families affected by current policy can navigate the bureaucratic waters.
As it currently stands, Section 301 of the Immigration and Nationality Act (“INA”) allows a child who is born outside of the U.S. to gain U.S. citizenship if his or her parents are married, and at least one parent is a U.S. citizen.(1) The problem lies, however, in the U.S. State Department’s interpretation of Section 301. Though the statute does not explicitly include language requiring married parents to be biologically related to their child, the State Department, through its Foreign Affairs Manual, has interpreted the statute to require this.(2) Consequently, absent a biological relationship to both parents, a child born “in wedlock” is seen as a child born “out of wedlock” in the eyes of the government. The result: children born in same-sex marriages are not allowed to obtain U.S. citizenship if they are born outside the U.S. and are biologically related to their non-citizen parent, despite the other parent being a U.S. citizen. Not only does this discount the legitimacy of the same-sex couple’s marriage, but the child’s parents are suddenly faced with additional obstacles as they are forced to look elsewhere under the INA to obtain citizenship for their child — an alternative that may bring about hurdles that are both emotionally and financially costly.
Unfortunately, this was the case for married California couple, Andrew and Elad Dvash-Banks. Andrew was a U.S. citizen, while his husband, Elad was not. While living in Canada, Andrew and Elad made the decision to grow their family with the help of assisted reproductive technology, and the couple welcomed twin boys in 2016. It was not until they attempted to obtain U.S. passports for their sons that they would face the discrimination of the INA firsthand. Despite the couple being married, and Andrew being a U.S. citizen, only one of their sons, Aiden, was granted U.S. citizenship. Based on the State Department’s interpretation of Section 301, Ethan was denied U.S. citizenship because he was biologically related to Elad and not Andrew. In February of this year, the United States District Court of the Central District of California declined to follow the State Department’s interpretation of the statute, ruling that Section 301 does not require a child born to married parents to have a biological connection to both parents, and Ethan was granted citizenship.(3) However, this happily-ever-after may be short-lived, as the State Department has announced their decision to appeal the ruling.
As the future of this issue remains unsettled, LGBTQ families who are contemplating establishing their families beyond U.S. borders are left with few assurances as they engage in family planning. Without solid answers, couples remain limited in their ability to choose where their children are born and which of the parents must biologically contribute to guarantee that their child is born a U.S. citizen.
Notwithstanding the many protections North Carolina law offers LGBTQ families, this is still an issue for those residing in our state. Federal law trumps our local laws, and the State Department’s website provides: “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 through ART, 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.”(4) Therefore, until this is settled, North Carolina LGBTQ families must be aware of their rights and the current limitations in the law.
Given the intricacies of this area of law, if you and your family are affected or may be affected by Sections 301 and 309 of the INA (Immigration Equality provides insights on this issue from a national perspective) (immigrationequality.org), it is essential that you seek the advice of an experienced attorney to protect your interests and the future of your family.
(1) 8 U.S.C. § 1401
(2) 7 FAM 1131.2
(3) Dvash-Banks v. Pompeo (2019)
Kariss Frank is an attorney in the Family Law practice area of Sodoma Law, based in the firm’s Charlotte, N.C. office. She is a graduate of the University of South Carolina School of Law.