Another Twist on U.S. Citizenship

[RavenSky]

Andrew Dvash-Banks was studying in Israel when he met his future husband, Elad, an Israeli citizen.

...they moved to Canada, where they wed in 2010. The children were born by a surrogate in September 2016.

Everything seemed fine until the couple brought their cranky infants to the American consulate in Toronto a few months later to apply for citizenship and the woman at the counter began asking probing questions they found shocking and humiliating.

The consular official told them she had discretion to require a DNA test to show who the biological father was of each boy and without those tests neither son would get citizenship...

...After submitting the DNA test results that proved who fathered each boy, the couple received a large and small envelope from the U.S. on March 2. The big one included Aiden's passport. The other was a letter notifying Andrew that Ethan's application had been denied.

The family has since moved to Los Angeles to be closer to Andrew Dvash-Banks' family. Ethan came on a tourist visa that expired last month.

http://www.sfgate.com/news/article/Gay-couple-sues-after-1-twin-s-US-citizenship-12520441.php

 

[TSwizzle]

Unfortunate but as the way the law is written, the outcome appears to be correct. The courts will figure it out.

 

[Playball40]

This is bullshit. How do they know the egg donor wasn't American? It does not say the surrogate was the egg donor and most likely she was not. That said, if I were a Norwegian citizen and my husband was an American citizen and we came to get citizenship for our twins, I seriously DOUBT they will require DNA tests to PROVE my husband fathered both children. I could have had an affair, or had artificial insemination without my husband's sperm.

 

[bilby]

Unfortunate but as the way the law is written, the outcome appears to be correct. The courts will figure it out.

The way the law was written, the Final Solution was correct.

Doesn't make it acceptable, right, moral, or laudable.

To claim that an immoral act complies with the law is moral cowardice of the worst kind. Fuck the law. If the law leads to immoral results, then it should be changed.

 

[TSwizzle]

This is bullshit. How do they know the egg donor wasn't American? It does not say the surrogate was the egg donor and most likely she was not.

Maybe the mother's nationality was stated on the child's birth certificate ? Maybe they coughed up that information somewhere during the application process ?

 

[SimpleDon]

Unfortunate but as the way the law is written, the outcome appears to be correct. The courts will figure it out.

I am sure that the courts will sort it out. But unfortunately this is what happens when the courts do sort things rather than when they go through the proper legislative route. Things like this are the result of the failure of Congress to sort out the mess that the Supreme Court makes when it expands rights. The court doesn't realize all of the areas of the law that the homophobia touched.

 

[RavenSky]

Unfortunate but as the way the law is written, the outcome appears to be correct. The courts will figure it out.

I am sure that the courts will sort it out. But unfortunately this is what happens when the courts do sort things rather than when they go through the proper legislative route. Things like this are the result of the failure of Congress to sort out the mess that the Supreme Court makes when it expands rights. The court doesn't realize all of the areas of the law that the homophobia touched.

From what I have read so far, it seems like this has less to do with homophobia, and more to do with U.S. citizenship law not anticipating the realities of "assisted reproductive technology".

The U.S. Department of State determines whether a child born abroad to a U.S. citizen parent acquired U.S. citizenship at birth

A child born abroad may acquire U.S. citizenship at birth if the parent/parents of the child meet the conditions prescribed in the Immigration and Nationality Act (INA).

The U.S. Department of State interprets the INA to mean that a child born abroad must be biologically related to a U.S. citizen parent who meets the following statutory transmission requirements of INA 301 or 309 in order for the child to acquire U.S. citizenship at birth:

A U.S. citizen father must be the genetic parent of the child and meet all other statutory requirements in order to transmit U.S. citizenship to the child at birth.

A U.S. citizen mother must be the genetic and/or the gestational* and legal mother of the child at the time and place of the child’s birth and must meet all other statutory requirements in order to transmit U.S. citizenship to the child at birth. (*Gestational mother is the woman who carries and gives birth to the child)

https://travel.state.gov/content/tr...oductive-Technology-ART-Surrogacy-Abroad.html

...if I were a Norwegian citizen and my husband was an American citizen and we came to get citizenship for our twins, I seriously DOUBT they will require DNA tests to PROVE my husband fathered both children. I could have had an affair, or had artificial insemination without my husband's sperm.

This is exactly the point these parents (and others like them) are making. Where existing law/interpretation is problematic is that the typical heterosexual married couple will not be questioned, whereas it is biologically obvious that a donor and/or surrogate was used for a same-sex couple.

How do they know the egg donor wasn't American? It does not say the surrogate was the egg donor and most likely she was not.

This is an excellent point, and the article does not indicate whether the American Consulate official even asked this question. However, according to the the article cited about, a "U.S. citizen mother must be the genetic and/or the gestational* and legal mother of the child at the time and place of the child’s birth".

Since the birth mother was a surrogate, and never the "legal mother" of the baby, the baby doesn't meet the requirements for automatic citizenship.

This would apply to a heterosexual couple, too... if they were ever asked.

Interestingly, adopted children automatically receive U.S. citizenship if the parents reside in the U.S. with the child. The process does take two years, though. http://www.alllaw.com/articles/nolo...gn-born-adopted-children-get-citizenship.html

 

[Jolly_Penguin]

Speaking of USA passports, on my recent flight from Canada to Ecuador I went through US customs and was surprised that they processed me, a Canadian, through the US citizens line instead of the foreigners line.

 

[bilby]

Speaking of USA passports, on my recent flight from Canada to Ecuador I went through US customs and was surprised that they processed me, a Canadian, through the US citizens line instead of the foreigners line.

Is it perhaps a 'NAFTA Citizens line'?

It's not necessarily a good thing to be treated as a local citizen anyway - the line might move twice as fast, but if it is three times as long, you are better off being a foreigner. I had that experience in Dublin - I arrived from the UK at the about same time as a number of flights landed from other EU nations, and the line for the EU Passport Holders went three times round the arrivals hall. So I put away my EU passport, pulled out my Australian one, and went through the 'Non-EU' door, where there was a customs officer with his feet on the desk reading a newspaper. I was his first passenger for over an hour, and he was thankful to see me to relieve the boredom

 

[Loren Pechtel]

Speaking of USA passports, on my recent flight from Canada to Ecuador I went through US customs and was surprised that they processed me, a Canadian, through the US citizens line instead of the foreigners line.

Shouldn't happen. I've seen them address balance issues by directing citizens into the non-citizen line (happened to me once and I did not like the experience--drew an idiot who couldn't accept that we brought back next to nothing from our trip to China. Fool, you have our data in front of you, what does it show about our travel? What would we be likely to bring back after more than a dozen trips there? The cheap electronics you talk about? You mean like the "200gb" flash drives I was seeing all over the place? I know better than to be scammed like that!) but it shouldn't happen the other way around as the citizen lines don't have the fingerprint scanners the non-citizen lines do.