In vitro fertilization is an option that more and more families are using. This can help married couples who are having difficulties conceiving children, or it can be an option for same-sex couples who choose to have children through biological means rather than adoption. The latter was the case for a married couple who opted to have twins with help of an egg donor and a surrogate.
One man was from the U.S. and the other was from Israel. In choosing twins, they opted to have each of them fertilize an egg, which is not uncommon, and have them carried together by the surrogate. The parents who lived in Canada at the time they ran afoul of the U.S. State Department when it came time to get passports for the boys. The consulate in Canada insisted on DNA testing of the boys to determine parentage (which the parents knew, but had been a secret). After testing results, citizenship and a passport were given to the child of the American father, and visitor status to the child of the Israeli father.
Biology has nothing to do with it
Fortunately, District Court judge in Los Angeles ruled that both boys were citizens when they were born in 2016. He pointed out that the legally married parents need not be the biological parents, nor do the children need to be born in the U.S., which runs counter to the State Department's interpretation of the Immigration and Nationality Act (INA). The judge also ruled that the State Departments initial rejection was a violation of the Fifth Amendment's right to due process.
A win for families of all types
The State Department's website previously had language that said there must be a biological connection to a U.S. citizen parent to become a U.S. citizen at birth, which is a policy for children born abroad out of wedlock. While the State Department has not changed its policy yet, this ruling is an important one for families with same-sex parents as well as those who live abroad or are married to citizens from other countries.
This story has a happy ending, but it took the parents and a legal team for that to happen. Parents who come up against arcane state and federal laws often need legal guidance to ensure that the family unit is intact. Working with a knowledgeable family law attorney can be a tremendous help in ensuring that all families get the legal protection that they deserve.