The U.S. State Department is facing a lawsuit by a gay couple claiming their surrogate child was denied American citizenship because his father is an Israeli citizen.
The 16-month-old plaintiff in the federal lawsuit, Ethan Dvash-Banks, has been denied the American citizenship that was granted to his twin brother, Aiden, The Associated Press reported Wednesday. The boys, born minutes apart to a surrogate mother, were conceived with sperm from Andrew and Elad Dvash-Banks, the married gay couple who are now facing the issue due to Elad being an Israeli citizen.
Ethan, biologically Elad’s son, is not linked by DNA to an American citizen according to the State Department which would not grant the child automatic American citizenship.
“I started crying,” Andrew Dvash-Banks said. “These are twins, how can you differentiate between them? They were born minutes apart.”
According to Associated Press:
The lawsuit was one of two filed Monday by an LGBTQ immigrant rights group that said the State Department is discriminating against same-sex binational couples by denying their children citizenship at birth. The cases filed in Los Angeles and Washington by Immigration Equality said the children of a U.S. citizen who marries abroad are entitled to U.S. citizenship at birth no matter where they are born and even if the other parent is a foreigner.
The State Department said it doesn’t comment on pending litigation, but pointed to guidance on its website that says there must be a biological connection to a U.S. citizen to become a citizen at birth.
“What we’re trying to do is pursue justice for Ethan,” Elad Dvash-Banks said, “and correct a wrong that the State Department is continuing to pursue that might affect other couples.”
Immigration Equality’s executive director Aaron Morris contends that the agency is discriminating against nontraditional families.
“If a mother and father walk into a consulate and have a marriage certificate and birth certificate, they’re never asked any questions about the biology of the child,” Morris told the AP. “But the converse is also true and every same-sex couple will be asked that.”
The defeat of the Defense of Marriage Act at the Supreme Court in 2010 essentially opened the door for cases such as this to be brought, legal experts like immigration lawyer Ally Bolour believe.
“This is an absolutely fascinating, cutting edge area of law that stems from [DOMA] being overturned,” Bolour told the AP. “It was just a matter of time for this issue to be decided by the courts.”
Andrew Dvash-Banks met Elad while studying in Israel. The two moved to Canada where they were married in 2010. The twins were born in 2016 and were taken to the American consulate in Toronto a few months later to apply for citizenship.
The men were asked “probing questions they found shocking and humiliating,” according to the AP which reported:
The consular official told them she had discretion to require a DNA test to show who the biological father was of each boy and without those tests neither son would get citizenship. The men knew that Andrew was Aiden’s biological father and Elad was Ethan’s but they had kept it a secret and hadn’t planned on telling anyone.
After DNA tests revealed the children’s paternity, Aiden was issued a passport while Ethan’s application was denied. The family has since moved to Los Angeles but Ethan’s tourist visa expired last month.
“He doesn’t have legal status,” Andrew Dvash-Banks said.
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