When a child of a U.S. citizen is born in another country, that child can become a U.S. citizen by meeting the requirements of the Immigration and Naturalization Act, regardless of the other parent’s nationality. A gay couple that fathered twin sons via a Canadian surrogate is now embroiled in a legal battle with the U.S. State Department after one of their sons was awarded citizenship but the other child’s application was denied.

The couple, one an Israeli citizen and the other a U.S. citizen, were married in Canada. Using donor eggs, sperm from each of the fathers and a surrogate, they welcomed twins in 2016. Both fathers’ names are listed on the children’s birth certificates. However, when they applied for U.S. citizenship for their sons, the fathers were required to submit to DNA testing to determine biological parentage. When the results of those tests revealed that one of the children was biologically the child of the Israeli citizen and the other was biologically tied to the U.S.-born father, the State Department only issued a U.S. passport for the child that is biologically related to his parent who is a U.S. citizen. 

Immigration Equality, an LGBTQ immigrants’ rights group, has asserted that the State Department isn’t applying its rules the same way in this case as it would if a heterosexual couple with different citizenships was in the same situation. The group claims that a married heterosexual couple presenting a birth certificate for a child born abroad would not have to prove biological parentage.

While it is too soon to know how the courts will rule in this matter, it’s likely that LGBTQ groups, immigration organizations and surrogacy advocates will be watching this case closely. If you are considering expanding your family through surrogacy, egg or sperm donation, contact us today. Our team of experts has the experience and ability to tailor a comprehensive family plan for you. We will carefully listen to you to create a contract and a plan to help build your family that meets your wishes and needs.