Ethan and Aiden shared a womb for nine months, were born four minutes apart, and, yet, in the eyes of the US State Department, did not share US citizenship at birth. This anomaly arose from a rogue interpretation of immigration rules that places undue emphasis on biology in determining when a US-citizen-parent can transmit citizenship to a child born abroad. A federal court has corrected the problem in this case, but it will happen to some other family unless the government revises its approach.
It Takes Four to Create a Family
Andrew and Elad Dvash-Banks, both men, are married. Andrew is an American citizen, and Elad is Israeli. The couple were living in Canada when they decided to become parents via surrogacy. Each man provided sperm to create an embryo with eggs from a donor; one embryo from each was implanted in the uterus of a woman who agreed to serve as a gestational carrier. The twins were born in Canada, but their dads sought to move the family to Los Angeles just a few months later. Under American immigration law, US citizens can transmit citizenship to their children born outside the United States, but consulates refer to a set of guidelines that do not follow directly from the relevant provisions of immigration law.
The US Consulate in Toronto asked the family to submit to DNA testing so it could determine whether the twins were both biologically related to Andrew, the American citizen. When the results revealed that Aiden was the biological son of Andrew, he was granted a US passport. But when those same results revealed that Ethan was the child of Elad, he was granted only a tourist visa, which gave him the temporary right to travel to the United States. Matching outfits, shared toys, same gestational carrier, same dads—but different countries of origin.
Birth of a Citizen: The American Way
There are two basic methods for acquiring US citizenship at birth: by place of birth or by descent. The Fourteenth Amendment provides for so-called birthright citizenship (jus soli)—any person born in the United States is a citizen, regardless of the citizenship of his or her parents. (This was in the news recently as President Trump announced his intent to end birthright citizenship by executive order—an idea that should have been dead in the water, as explained by my fellow columnist, Michael Dorf, but that received undue attention.)
In addition to the constitutionally guaranteed mechanism for acquiring citizenship, Congress has also acted to provide an additional means to acquire citizenship at birth—by descent (jus sanguinis). In many countries, especially those with legal systems based on Roman law, this is the exclusive method by which individuals can acquire citizenship at birth. This is true in every European Union country currently (though not in Canada, where the twins in this case were born.) In the United States, however, this method of acquiring citizenship is relevant only to the status of babies who were born abroad and thus do not have the benefit of jus soli birthright citizenship. Because this means citizenship is not rooted in the Constitution, Congress has the authority to craft the terms on which it is offered (as long as, in doing so, it doesn’t violate other provisions of the Constitution such as the Equal Protection Clause).
Citizenship by Descent: The Role of Legitimacy and the Role of Method of Conception
The rules governing citizenship by descent separate children born outside of the United States into a variety of categories. The categories, and the rules that govern each one, are spelled out in the Immigration and Nationality Act of 1952 (INA), as amended in 2000 by the Child Citizenship Act (CCA). One must first understand the different sets of rules to appreciate the issue raised by the Dvash-Banks family.
Section 301(c) of the INA provides, for example, that a person born outside of the United States to two US-citizen-parents acquires citizenship at birth as long as at least one of the parents “has had a residence in the United States or one of its outlying possessions, prior to the birth of such person.” That parent’s US residence need not still exist, nor need it have existed for any particular length of time.
There are additional requirements for children with only one citizen-parent. Under section 301(d), a child of married parents, one of whom is a citizen and the other of whom is an alien, section 301(g) provides that the citizen-parent must, “prior to the birth of such person, [have been] physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years.” In either situation, the physical presence requirements can be satisfied at any time and need not be satisfied immediately prior to the child’s birth.
Children born to unmarried parents are subject to a different set of more onerous rules. Congress has made it generally more difficult for these children to acquire citizenship from a parent, but also makes it more difficult to acquire citizenship from a father rather than a mother. Section 309(c) of the INA permits a citizen-mother to transmit citizenship as long as she was physically present in the United States for at least one year prior to the child’s birth. For a citizen-father, however, the transmission of citizenship requires more. Under Section 309(a), citizenship descends through the unwed father only if he has been physically present in the United States for five years, at least two of which were after he turned 14, and all of the following requirements are met:
- a blood relationship between the person and the father is established by clear and convincing evidence,
- the father had the nationality of the United States at the time of the person’s birth,
- the father (unless deceased) has agreed in writing to provide financial support for the person until the person reaches the age of 18 years, and
- while the person is under the age of 18 years–
- the person is legitimated under the law of the person’s residence or domicile,
- the father acknowledges paternity of the person in writing under oath, or
- the paternity of the person is established by adjudication of a competent court.
Over the years, there have been many constitutional challenges to the different requirements imposed on mothers and fathers. In several different cases, the Supreme Court has upheld the sex-differentiated aspects of the rules, including in Miller v. Albright (1998), Nguyen v. INS (2001), and United States v. Flores-Villar (2011). In one recent case, the Court invalidated one particular difference, but failed to remedy the harm in a way that helped the plaintiff who challenged it. (That case, Sessions v. Morales-Santana, and the cases that preceded it, are discussed here.)
How the State Department Interprets and Applies the Rules Governing Transmission of Citizenship for Babies Born Outside the United States
Recall that when Andrew and Elad went to the US Consulate to apply for US passports for the twins, they were met with a request for DNA proof that Andrew, the American citizen, was the biological father of both babies. That request was not based on the statutes summarized above from the Immigration and Nationality Act. Rather, the request was based on the Foreign Affairs Manual (FAM) that the State Department uses to organize all the structures, policies, and procedures that govern its operation.
Congress has delegated the administration and enforcement of citizenship laws with respect to individuals who are outside the United States to the State Department. The State Department, in turn, has spelled out in its Foreign Affairs Manual its view of the rules governing transmission of citizenship to children born abroad. These rules matter because the mechanism for obtaining a passport for a child born abroad is to request a Consular Report of Birth Abroad of a Citizen of the United States, which is granted only upon “application and the submission of satisfactory proof of birth, identity and nationality.” The FAM rules state in several different places that proof of a biological relationship between the child and the US-citizen-parent is required for the parent to transmit citizenship. But, as the litigation brought by the Dvash-Banks family makes clear, the relevant statutes do not impose that requirement in all situations.
The preoccupation with biological parentage was in the headlines a few years ago, when a single, American woman gave birth to twins in Israel, who had been conceived using reproductive technology. She was asked to provide proof that either the donated eggs or sperm had come from an American citizen. According to the FAM guidelines on reproductive technology in place at the time, the woman’s citizenship was irrelevant—only the gametes used to conceive the children carried and intended to raise were capable of transmitting citizenship. Although it was reported in the news that this woman ceased pursuing American citizenship for her twins, as the donors were presumably Israeli, FAM was amended in 2014 to provide that a woman with either a genetic or gestational connection to a child can transmit her citizenship. FAM now provides that “In all cases, the U.S. citizen mother must be the genetic or the gestational mother and the legal parent of the child under local law at the time and place of the child’s birth to transmit U.S. citizenship.”
The Ruling in Dvash-Banks v. Pompeo
This change helps mothers who conceive with reproductive technology, but what about fathers?
FAM also recognizes men who are the genetic or gestational parents—but that doesn’t help the Dvash-Banks family. Crucially important to their case is that FAM requires proof of biological citizenship for children born to married as well as unmarried parents. After receiving the DNA evidence, which showed that Aiden is Andrew’s biological son but Ethan is not, the Toronto Consulate refused to issue a Consular Report of a Birth Abroad for Ethan, citing the FAM provision on biological parentage. Eventually, Andrew and Elad sued under 8 U.S.C. § 1503, which permits a court to issue a declaration of citizenship for any individual who qualifies.
The federal district court ruled in favor of Andrew and Elad, concluding that Ethan is entitled to citizenship by virtue of his parent, Andrew. How did it reach that result? The court first outlined the provisions of the INA (which are summarized above), noting that the law imposes less onerous requirements on children of married parents. Specifically, the court noted, the provision requiring that “a blood relationship between the person and the father is established by clear and convincing evidence” is included only in the section designated for children born “out of wedlock.” The problem for Ethan and Aiden comes in FAM’s definition of in- and out-of-wedlock births. In all other settings, a child is born “in wedlock” if his parents are married at the time of conception or birth. But FAM redefines an in-wedlock birth as that of a child whose “biological parents were married to each other at the time of the birth of the child.” This means that children conceived with donor sperm or eggs are always deemed out-of-wedlock, even if the adults intending to raise them are married to each other.
One could define an out-of-wedlock birth in different ways, but FAM chooses a definition that is seemingly at odds with the INA provisions it purports to interpret. FAM claims to interpret the language of Section 301, which says citizenship is transmitted to “a person . . . born . . . of parents one of whom is a . . . citizen of the United States.” It claims “born . . . of parents” can only mean born to two genetic parents. But that is neither the standard definition of legitimacy, nor one dictated by Section 301.
The district court in this case rejected FAM’s “strained definition.” Moreover, the court wrote, the “FAM represents the State Department’s unilateral declarations and is not the product of a formal adjudication or notice-and-comment rulemaking or congressional action.” Indeed, the 2014 change designed to include gestational parents in the definition of “mother” “was not occasioned by any corresponding amendments to the law or any other congressional action.” FAM does not make the rules—Congress does (and did). The court then proceeded to consider whether Section 301—not the FAM rules—requires “a person born during their parents’ marriage to demonstrate a biological relationship with both of their married parents.” Under controlling Ninth Circuit precedent, the court concluded, it does not.
The court cited two cases in which the Ninth Circuit had considered this question. In Scales v. INS, the court held that a child born to a Philippine-citizen-mother while she was married to an American citizen acquired citizenship at birth even though the husband was not the biological father of the child. The Ninth Circuit concluded that a “straightforward reading” of the “born of” language in Section 301 indicates “no requirement of a blood relationship” between the child and the US-citizen-parent. The court expressly refused to follow the rules in FAM, which it found were “so divergent from the statutory language as to not even be appropriately considered an interpretation” of the statute. Again, in Solis-Espinoza v. Gonzales, the Ninth Circuit the biological child of a Mexican-citizen man could acquire citizenship at birth through the man’s wife, who was a US citizen, but not the biological mother. Specifically, the court held that the child “was a legitimate child, not born out of wedlock.”
The court in the Dvash-Banks case found these cases indistinguishable other than the gender of the parents. Children born to married parents, regardless of gender, are entitled to a presumption of legitimacy. Congress’s concerns about unwed fathers—explained in great detail in the constitutional cases cited above—are not present with married parents, even when one is not biologically related to the child. Congress carefully differentiated between children born to married and unmarried parents but did not carefully exclude children without a biological relationship to both parents. Had Congress wanted to do this, it could have. Moreover, the Ninth Circuit’s interpretation of the relevant provisions is consistent with Congressional intent to protect children by keeping families together.
Ethan and Aiden now have equal status as American citizens, the right result as they are being raised by the same parents. But the time has come for the State Department to revise FAM to align with the statutory scheme it purports to apply.