Published : Friday, 31 May, 2019 at 1:14 AM, Count : 1188
James Derek Mize is an American citizen, born and raised in the United States. His husband, who was born in Britain to an American mother, is a US citizen, too. But the coupleâ€™s infant daughter isnâ€™t, according to the State Department.
She was born abroad to a surrogate, using a donor egg and sperm from her British-born father. Those distinct circumstances mean that, under a decades-old policy, she did not qualify for citizenship at birth, even though both her parents are American.
â€œItâ€™s shocking,â€ said Mize, 38, a former lawyer who lives in Atlanta with his husband, Jonathan Gregg, a management consultant. The couple received a letter denying their daughterâ€™s citizenship last month.
â€œWeâ€™re both Americans; weâ€™re married,â€ Mize said. â€œWe just found it really hard to believe that we could have a child that wouldnâ€™t be able to be in our country.â€
Their case illustrates the latest complication facing some families who use assisted reproductive technology, like surrogacy and in vitro fertilisation, to have children. For years the techniques have set off provocative legal and ethical debates about what defines parenthood. Immigration and citizenship are the latest frontier in those debates.
At issue is a State Department policy, based on immigration law, that requires a child born abroad to have a biological connection to an American parent in order to receive citizenship at birth. That is generally not a problem when couples have babies the traditional way, but can prove tricky when only one spouse is the genetic parent.
The policy has come under intense scrutiny in recent months amid lawsuits arguing that the State Department discriminates against same-sex couples and their children by failing to recognise their marriages. Under the policy, the department classifies certain children born through assisted reproductive technology as â€œout of wedlock,â€ which triggers a higher bar for citizenship, even if the parents are legally married.
In one instance, a married Israeli-American gay couple had twin sons in Canada using sperm from each of the fathers. The biological son of the American received citizenship, but his brother, the biological son of the Israeli, did not. In February, a federal judge sided with the couple, calling the State Departmentâ€™s interpretation of the immigration law â€œstrained.â€ The department is appealing.
The government is also fighting a similar suit from a lesbian couple in London, who did not use a surrogate. One is American and one is Italian. They took turns conceiving and carrying their two children. Only the child born to the American mother was granted citizenship. Last week, a federal judge allowed the case to proceed, calling the familyâ€™s predicament â€œterribleâ€ and â€œoutrageous.â€
Though the policy predates the Trump administration, the presidentâ€™s opponents have seized upon it. On Friday, Speaker Nancy Pelosi of California, the Democratic leader of the House, called it â€œan unconscionable attack on American families.â€
The State Department, which has emphasized that the policy applies to opposite-sex and same-sex couples alike, declined to comment, citing pending litigation.
1950S LAW, 21ST-CENTURY FAMILIES
The focus on a biological connection dates to the Immigration and Nationality Act of 1952, well before the advent of modern reproductive technology and the legal recognition of same-sex relationships.
The State Departmentâ€™s policy on assisted reproductive technology, first drafted in the late 1990s, is based on an interpretation of that law, which includes language that children are â€œbornâ€ of their parents and mentions a â€œblood relationshipâ€ in certain cases.
The rules for passing down citizenship are meant to ensure that children born abroad have a sufficient connection to the United States.
â€œProof of the biological connection is necessary so that the born-abroad citizenship route is not susceptible to fraud by people claiming they are children of United States citizens when, in fact, they are not,â€ said John C Eastman, a senior fellow at the Claremont Institute, a conservative think tank in California.
The interpretation has led the State Department to regard births from assisted reproductive technology as â€œout of wedlock,â€ if the source of the sperm and the egg do not match married parents. Such a designation comes with extra requirements for transmitting citizenship, including showing that a biological parent is a US citizen who has spent at least five years in the United States.
Scott Titshaw, an associate professor at Mercer University School of Law in Macon, Georgia, said the policy reflects a â€œmismatchâ€ of immigration and family laws. â€œIt runs counter to the current societal understanding of what marriage is,â€ he said. â€œAnd probably more important, it runs counter to the current legal definition of what parentage is.â€
Under the Obama administration, the State Department adjusted the requirement so that a parent could also establish a biological connection by giving birth, in addition to supplying the egg or sperm. That allows a lesbian couple to have a child â€œin wedlockâ€ if one woman provides the egg and the other carries the baby.
But two men in a marriage donâ€™t have that option. â€œA same-sex male couple cannot conceive a child where both of them are a parent under this definition,â€ Titshaw said.
A BIRTH ABROAD
Itâ€™s unclear how many people are affected by the policy, or how many are same-sex couples. Relatively few families go abroad to have children through assisted reproductive technology, but there can be financial or personal reasons for doing so.
Mize and Gregg, who met at a swim team practice in New York in 2014 and married the next year, worked with a close friend, who is British, to serve as their surrogate. Their daughter, Simone, was born at a British hospital last year.
But after obtaining her birth certificate abroad, the couple said they applied for her US citizenship last month, only to find out she didnâ€™t qualify.
Gregg, who had lived in Britain for most of his life before moving to the United States to be with Mize, did not have enough years in America, according to a letter from the US Embassy in London.
â€œItâ€™s a psychological trauma,â€ Mize said.
â€œWhen we went to the embassy and they said, â€˜Youâ€™re not a family, youâ€™re not married and, Derek, youâ€™re not her father,â€ he recalled, â€œit was just like a flood of every emotion Iâ€™ve ever had since I was first called a faggot came rushing into my body.â€
FAMILIES IN LIMBO
In court filings, the State Department said that officers are expected to carefully investigate all assisted reproductive technology cases, â€œirrespective of the sex or sexual orientation of the legal parents.â€ And there have been cases where different-sex parents were asked for biological evidence, lawyers in the field said.
But in practice, advocates say the policy has a particular impact on same-sex couples.
â€œThe State Department is effectively saying our marriage doesnâ€™t count,â€ said Adiel Kiviti, 40, another father who said that his childâ€™s citizenship was recently called into question. â€œIf you arenâ€™t going to afford us the benefits of a married couple, whatâ€™s the point of giving us the right to marry?â€
Adiel and his husband, Roee Kiviti, were born in Israel and later naturalised, they said. The men, whose interview with The Daily Beast drew renewed attention to the policy last week, have two children, each born with the help of a surrogate in Canada.
When they sought citizenship for their older child, Lev, in January 2017, they said they were not asked about his parentage and he was granted citizenship. But after their daughter, Kessem, was born this year, the State Department asked for documentation. Adiel, who is Kessemâ€™s genetic parent, had not spent five full years in the country when the girl was born, the family said. They are discussing how to respond.
â€œWhere are they going to deport our child to?â€ said Roee, who works as a television journalist. His husband runs a media production business in Washington. â€œWe live in America.â€
Mize, whose daughter is now 11 months old and learning to walk, feels a similar stress. He said he had been traveling back and forth to Britain with Simone, who has a tourist visa. He worries about disrupting her development at such a young age, and fears what could happen if her legal status is not resolved.
â€œThis is where our life is. This is where our jobs are,â€ he said. â€œOur daughter canâ€™t be here, but she has no one else to care for her.â€