In 2016, a same-sex married couple, the Dvash-Bankses, became parents to twins through surrogacy, each of them contributing one embryo to the surrogate mother. One of the fathers was a U.S. citizen, the other an Israeli citizen. Though the two were legally married, when the family moved back to the U.S., only the twin that was biologically related to the U.S. citizen was granted U.S. citizenship; the other child was denied citizenship and given a visitor visa, which later expired and left him without legal status.

Unfortunately, this injustice seemed to be part of a larger pattern. Allison Blixt and Stefania Zaccari, a same-sex couple married in Britain, have two sons together, each born during their marriage. Allison is an American citizen and Stefania is an Italian citizen. The son that was conceived and carried by Allison was given U.S. citizenship when he was born, while his older brother, carried by Stefania, was denied citizenship. And in 2019, a Maryland same-sex married couple using a surrogate in Canada were denied U.S. citizenship for their daughter, despite her being biologically related to one of her U.S. citizen fathers through sperm donation.

Section 301 of the Immigration and Nationality Act (INA) states that a “child born outside of the United States…acquires citizenship at birth if at the time of birth one parent is a foreign national and the other parent is a U.S. citizen; and the U.S. citizen parent was physically present in the United States for at least 5 years, including at least 2 years after 14 years of age.” Section 301 applies to children born in wedlock, and a plain reading of Section 301 does not differentiate between children born to same-sex parents or opposite-sex parents.

However, when children are born out of wedlock, Section 309 of the INA requires that a “blood relationship between the child and the father is established by clear and convincing evidence.” The distinction made by these statutes is whether the children were born in wedlock or out of wedlock, yet the U.S. Department of State was requiring proof of a blood relationship from same-sex married couples using assistive reproductive technology, despite the children being born in wedlock in each of these cases.

Each of these families sued to have their children recognized as U.S. citizens. After years of frustration for these families, same-sex couples finally received a victory in May 2021. The State Department has now changed their policy to state “a child born abroad must be genetically or gestationally related to a U.S. citizen parent or to a non-U.S. citizen parent who is married to a U.S. citizen parent at the time of the child’s birth...” in order to qualify for U.S. citizenship. For children born abroad to married couples using assisted reproductive technology or surrogacy, even if the child is biologically related only to the non-U.S. citizen parent, the child will qualify for U.S. citizenship.