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Last year, we shared the story of an ongoing legal battle involving two Israeli-born but naturalized U.S. citizens whose daughter, born in Canada to a surrogate, was denied U.S. citizenship. Roee and Adiel were legally married in California in 2013, after Roee had already become a U.S. citizen. Their daughter, Kessem Kiviti, was conceived via surrogacy using donated eggs and Adiel’s sperm. Adiel became a U.S. citizen in January 2019.

When the couple applied for a passport for Kessem, the application was denied on the grounds that Adiel, Kessem’s biological parent, didn’t meet the residency requirements required for Kessem to be considered a U.S. citizen.

In June 2020, a federal court ruled that Kessem was a U.S. citizen and that she therefore qualifies for a U.S. passport. Unfortunately, the Trump Administration has appealed that ruling, asserting that Kessem does not qualify for U.S. citizenship because she is not biologically related to both of her parents. Because Kessem has no biological tie to Roee, and because Adiel did not become a U.S. citizen until 2019, the Trump Administration is claiming that Kessem cannot be considered a citizen.

The 1952 Immigration and Nationality Act provided that any child born to a married couple living abroad would be a U.S. citizen at birth, as long as at least one of the child’s parents was a U.S. citizen. However, in 2017, the U.S. State Department changed its website to state that a child born abroad must be biologically related to a U.S. citizen parent.

The administration’s appeal and the State Department’s interpretation of the law are also negatively impacting several other U.S. same-sex couples and their children born to surrogates outside the country. The Kivitis are represented by well-known law firm Morgan Lewis, as well as Immigration Equality and Lambda Legal, an LGBTQ legal advocacy group.

We will continue monitoring this case and will share the outcome when the appellate court issues its ruling. At The Surrogacy Law Center, we aim to provide our clients with a straightforward breakdown of what might seem to be a complicated and daunting process so that they can enjoy the beautiful experience of bringing a child into the world through surrogacy. Contact us today to get started!