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A battle over the U.S. State Department’s denial of citizenship rights to a baby born to two U.S. citizens is brewing. A same-sex married couple in Maryland whose daughter was born through surrogacy in Canada earlier this year has filed a federal lawsuit against the current U.S. Secretary of State, Mike Pompeo, alleging that the State Department’s policy is discriminatory against same-sex couples. This suit is apparently at least the fourth such lawsuit against this policy.

In this case, the two fathers are both Israeli-born, naturalized U.S. citizens. Roee became a U.S. citizen in 2001 and Adiel in 2019. The couple was legally married in 2013, although Adiel didn’t move to the U.S. permanently until 2015. They already have a two-year-old son together; their daughter, conceived using Adiel’s sperm and a donor egg, is their second child.

When the couple applied for a U.S. passport for their daughter, the application was denied on the basis that her biological father, Adiel, hadn’t met a five-year residency requirement for the child to be automatically considered a U.S. citizen. Lawyers arguing on behalf of Roee and Adiel claim that the law was intended only for unmarried people and is being unfairly applied to deny citizenship to the children of married, same-sex couples. The couple has significant support behind them, with legal representation by well-known firm Morgan Lewis & Bockius, as well as the backing of advocacy groups Immigration Equality and Lamda Legal Defense.

The couple’s demand in their lawsuit is simple: Issue a passport for their daughter. If the judge in this case, Justice Theodore Chuang, follows the ruling of the judge in a similar, recent case in California, Adiel and Roee’s daughter will be deemed a U.S. citizen. However, even that recent ruling is in question as the State Department has filed an appeal against it.

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