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Policy Summary
Andrew and Elad Dvash-Banks are a same sex – couple and also the parents of twin boys. Andrew is a United States citizen and Elad is an Israeli citizen and both men were residing in Canada when they married in 2010. (Gay marriage was allowed in Canada at the time and not the United States until 2015 when the U.S. Supreme Court decided Obergefell v. Hodges, the Supreme Court case recognizing the validity of same – sex marriages). The two men decided to undergo assisted reproductive technology to conceive children. Donor eggs were used and with sperm from each of the men the medical procedure conceived a fetus which was implanted in a surrogate mother. The fetus resulted in twin boys named Aiden and Ethan who were born minutes apart in 2016. Andrew and Elad are listed as the legal parents of the boys and continue to raise both boys to this day.

Andrew and Elad soon went to the U.S. Consulate in Toronto Canada to apply for U.S. passports for their sons. However, because only Andrew is a U.S. citizen and Elad is not the Consulate asked for DNA proof that both boys were related to Andrew. The boys were tested and because of the contribution of each man to the reproductive medical procedure Aiden was DNA related to only Andrew and Ethan was DNA related to only Elad. Since Elad did not have U.S. citizenship, Aiden was granted U.S. citizenship and a U.S. passport while Ethan was denied. The two men then brought suit in the federal district court for the Central District of California challenging the consulate’s decision to deny Ethan birthright citizenship and a U.S. passport. LEARN MORE

Analysis: This is a unique case in that it is, on one side, about the determination of American citizenship for children born abroad, which is a hot topic in the current political environment that is debating the future contours of immigration to the United States. The basic framework for citizenship starts with children who are born on U.S. soil – if born anywhere in the U.S. the child has U.S. citizenship. If a baby of two American citizens is born abroad to two parents who are U.S. citizens, then the baby also acquires U.S. citizenship. Finally, if one parent is a U.S. citizen and one a foreign national, as in the case of Andrew and Elad, a baby born abroad is a U.S. citizen if the U.S. parent had lived in the U.S. for five years sometime in the past which Andrew had done. This should have qualified both twin boys for U.S. citizenship. However, the consulate erred when interpreting the Immigration and Nationality Act and when it required a DNA test of both boys to prove familial relationship to Andrew. Biological and DNA tests of children are only required of babies born abroad when the baby is born out of wedlock. That was clearly not the case here as Andrew and Elad had been validly married in Canada and were listed as the legal parents of both boys.

What likely occurred in this case was that the State Department was dragging its feet in updating these immigrant and citizenship policies because, from another view of the case, their opposition to same – sex marriages and also opposition to immigrants having an easier avenue to U.S. citizenship. Aaron C. Morris, the Executive Director of Immigration Equality, has stated that blood or DNA proof of a biological connection of a child and a parent is not required for babies born abroad of even heterosexual couples and that the U.S. Government has lost three cases litigating this very issue since 2000. By creating a difficult situation for Andrew and Elad and their children, the Government probably wanted to have their day in court and hopefully get a court to rule that immigrants born abroad would require more definite proof they are U.S. citizens then currently required. This would certainly be a boost to a Trump Administration who is skeptical of more immigrants coming to the U.S. And it could have also helped the Trump Administration if the court could have ruled against same – sex couples and excluded those couples from additional benefits of U.S. citizenship.

But Judge John F. Walter’s ruling that both boys have had U.S. citizenship from birth demonstrates that immigrants will not be denied birthright citizenship by simply placing onerous, unnecessary and additional scientific burdens on them to prove their right to citizenship. Judge Walter pointed out that DNA and blood proof in cases like Andrew and Elad are simply not required under the law. Judge Walter issued a very good ruling on that issue alone but he may have also helped the cause of LGBT rights by showing that same sex couples in court will be treated on an equal footing in the law with traditional couples. It is an implicit message but the message that LGBT couples can bring their claims to court and be treated equally and fairly in a court of law as any other couple is simply another bright spot in Judge Walter’s ruling. LEARN MORE, LEARN MORE

Engagement Resources:

This brief was compiled by Rod Maggay. If you have comments or want to add the name of your organization to this brief, please contact Rod@USResistnews.org


Photo by Rose Elena

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