Immigration Law

Same-sex couples file suits claiming their children were unconstitutionally denied citizenship

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same-sex parents


Corrected: Two married same-sex couples have filed lawsuits against the State Department claiming that it has unconstitutionally classified their surrogate-carried children as “born out of wedlock” after each of the couples were informed that one of their children would not be eligible for a U.S. citizenship by right of blood.

The Washington Post and The Recorder had the story.

U.S citizen Andrew Dvash-Banks filed one of the suits in the Central District of California on Monday. He is a travel agent in Los Angeles who is married to Elad Dvash-Banks. They have twins who were conceived with their genetic material. The State Department denied one of the twins a U.S. citizenship because he was conceived with the genetic material of Elad Dvash-Banks, who is an Israeli citizen.

The other suit was filed in the District of Columbia on Monday on behalf of U.S. citizen Allison Blixt. She is married to Stefania Zaccari, and they have two sons. The State Department similarly denied one of the boys a U.S. citizenship because he was conceived with the genetic material from Zaccari, who is an Italian citizen.

The plaintiffs in both suits are being represented by Immigration rights organization Immigration Equality and a group of lawyers from Sullivan & Cromwell. The lawyers claim that the State Department is unconstitutionally treating these cases as if they involve two couples who are not married, as they allege that the government only inquired about the genetic makeup of the children in question because they were born to same-sex couples.

“To use that requirement in these cases is both implicit and explicit evidence that the government is treating same-sex couples as if they are not married,” Immigration Equality director Aaron Morris told the Recorder. In Obergefell v. Hodges, the U.S. Supreme Court found that same-sex couples are owed “the constellation of benefits that the states have linked to marriage,” including the right to confer birthright citizenship to one’s child, Morris said.

The suits claim that the State Department has violated the due process and equal protection clauses invoked by the Fifth Amendment and the Immigration Nationality Act. They seek statements that the State Department has acted unconstitutionally in enforcing this policy as well as a permanent injunction barring the department from treating married same-sex couples differently than married heterosexual couples.

Reference to District of Columbia lawsuit corrected Jan. 25.

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