We alll understand birth right citizenship don’t we? If you are born in the United States you are an American citizen, no matter what the citizenship of your parents or whether or not they are married to each other.
If you are born abroad to an American citizen(s) you are entitled to birthright citizenship. Prince Archie, son of Megan, Duchess of Sussex is a perfect example.
Easy right? Not if you are a gay married couple holding U.S. citizenship and having a child abroad. Remember we are living in Trump world.
For years, President Donald Trump has called for the elimination of birthright citizenship for the children of undocumented immigrants who are born on American soil. Those children, slurred as “anchor babies,” are accused of being birthed with the sole purpose of tethering their non-citizen parents to the United States.
The Trump administration’s promised executive orders ending this “loophole” have not materialized, but the president’s war on birthright citizenship has many fronts—and one little-noticed State Department policy has now resulted in a reverse version of Trump’s “anchor baby” scenario, where the children of U.S. citizens born abroad are effectively being stopped at the border.
How can this be?
You are a gay male couple, legally married in the United States . You decide that you want to add children to your lives together. You find an egg donor and one of you provides the sperm. The fertilized egg now needs a surrogate to carry to term. You find a surrogate in Canada, draw up a surrogate document recognized in Canadian law and wait.
As the due date approaches you both travel to Canada and are present at the birth of your daughter. The baby is immediately turned over to you, a birth certificate issued indicating you are the parents as well as a Canadian passport.
So now you visit the U.S. Consulate to fill out the documents evidencing a child born abroad to U. S. citizens to obtain a U.S, passport for the little tike. Seems simple enough. Both parents are married. They are U.S. citizens. They live in the UnitedStates. Work and pay their taxes. They are biologically related to their child. Birthright citizenship is guaranteed by the 14th Amendment to the Constitution.
Not in Trump world.
Under the Trump State Department policy – children born via gestational surrogacy and other forms of assisted reproductive technology (ART) are considered to be born “out of wedlock,” in the State Department’s words—even if their parents are legally married.
Now no one would question birthright of U.S. citizenship for the child if the exact same details applied to a hetero couple. The “born out of wedlock” would never be raised even if the baby had no biological relationship to the parents. The State Department simply throws the legality of gay marriage under the bus for the children of gay couples born abroad.
The real couple involved in this situation were about to become the latest victims of a government policy that effectively de-recognizes the child’s parents’ marriage, granting her no automatic rights to American birthright citizenship despite the fact that both her fathers are U.S. citizens. That policy poses a unique threat to LGBT families, and could change the decades-old legal understanding of what the word “family” even means.
The U.S. Department of State interprets the Immigration and Naturalization Act to mean that a child born abroad must be biologically related to a U.S. citizen parent,” the State Department’s website says. “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.”
In the case above, at least one of the parents is biologically related to their children. Under the policy, however, children born via gestational surrogacy and other forms of assisted reproductive technology (ART) are considered to be born “out of wedlock,” in the State Department’s words—even if their parents are legally married.
The out of wedlock rule would not be applied to hetero couples in the exact same scenario.
Children born out of wedlock face higher legal and logistical hurdles to obtaining birthright citizenship: In addition to submission of DNA tests proving genetic links to U.S. citizen parents, their parents must be able to testify that they can support their children financially, and must prove that they have been present in the United States for at least five years prior to the child’s birth. If one of the parents was a naturalized U.S. citizen living here for less than 5 years birthright citizenship would not be granted.
Children of U.S. citizens are put at risk of deportation or even statelessness—despite no textual legal basis for the policy. The INA, signed into law when gestational surrogacy was science fiction and same-sex marriage was a fantasy, makes no reference to biological relationships in determining the citizenship of the child born abroad to married U.S. citizens.
In another case of a married lesbian couple living in London where one of the partners was an American citizen and the other an Italian, the State Department granted U.S. citizenship to a child born of the American and denied citizenship to the child born of the Italian on the basis of lack of biological connection to the U.S. citizen, notwithstanding that their marriage was totally legal.
That “assumption of parentage,” as the State Department calls it, now seems to LGBT parents to be reserved solely for heterosexual married couples. Only same-sex couples, whose non-traditional family structure sticks out like a sore thumb, end up facing scrutiny over how their children came into the world and as a result, whether they are eligible for birthright citizenship.
“If we did [in-vitro fertilization] and were hetero, we could have a different egg and sperm that were not genetically related to us, but due to… the ‘assumption of parentage’ which exists for married couples, they would not question the birth,”
“They’re basically saying, ‘Yes, Massi is your son, but Lucas isn’t.’ How do we explain that to our kids, that they’re not the same? That’s appalling,” Allison said. “He’s being treated like someone who has no connection to the U.S., much as a stepchild would. It’s offensive.”
“You see a gay man running for president on the cover of Time magazine with his husband, and then you get a call from the State Department essentially saying that your ‘out-of-wedlock’ daughter is not entitled to a passport,” Roee said. “You’re thinking, what is this parallel universe that we’re living in?”
We are living in Trump world.