By Cristina R. D’Amato

 

On June 17, 2020, the United States District Court of Maryland ruled in favor of same-sex couple Roee and Adiel Kiviti and their daughter K.R.K. to force the U.S. Department of State to recognize K.R.K. as a United States Citizen after having been born through Assisted Reproductive Technology (“ART”) in Canada. Although the Kiviti’s were successful, their journey reveals a system that still discriminates against same sex couples, more specifically, a system that discriminates based on the gender of those same-sex couples.

 

In order to recognize the significance of this decision, we must first highlight the facts. Roee Kiviti became a United States citizen in 2001. He was originally from Israel. In 2009 he moved back to Israel and met his future husband Adiel in 2011. Adiel received his Lawful Permanent Residency to live in the United States in 2015. Adiel eventually became a United States citizen in January of 2019.

 

In 2016, Roee and Adiel had a son, L.R.K. who was born through ART fertilization in Canada, using a surrogate gestational mother, an anonymously donated egg and Roee’s genetic material. This means L.R.K. is biologically related to Roee and the anonymous egg doner. Neither the surrogate gestational mother, nor Adiel are biologically related to L.R.K. Later that year, after L.R.K. was born, a Canadian court issued an order finding that BOTH Roee and Adiel were this baby’s only legal parents. All three returned to the U.S. and L.R.K. obtained his U.S. passport through the Department of State. At no point were the Kivitis asked about their biological relationship to L.R.K.

 

In 2019, Adiel became a US citizen in January and in February the two men had another child, K.R.K. the same way they had L.R.K. except this time, they used Adiel’s genetic material. They again had the Canadian court issue an order finding that BOTH Roee and Adiel were this baby’s only legal parents. At that point, Adiel had been living in the United States since May 2015, less than five years before K.R.K. was born. The Department of State evaluated K.R.K’s passport application under 8 USC §1409, the provision that applied to children born out of wedlock and cross referenced it with 8 USC §1401(g), which applied when a child is born to one U.S. parent and one non-US parent. Because it determined that Adiel had not satisfied the requirement of 8 USC §1401(g) necessitating that he reside in the US for five years prior to K.R.K.’s birth, the State Department concluded that K.R.K. was not a US citizen by birth and denied the passport application.

 

Wait a second! Roee and Adiel were married at the time of K.R.K’s birth meaning she was born in wedlock. So that makes no sense. Adiel also was a U.S. citizen when K.R.K. was born. More importantly, her other father, Roee was a U.S. citizen who DID meet all of the requirements. So why couldn’t K.R.K. get her U.S. passport?

 

Before moving on with the story, it is important to understand the law for children born abroad to U.S. citizen parents. If a child is born in wedlock to two U.S. citizen parents abroad, they only need one parent to have resided in the U.S. But if a child is born out of wedlock abroad to one US citizen parent and one “alien,” the U.S. citizen parent must have resided in the U.S. for 5 years, 2 of which after the age of 14, any time prior to the child’s birth. Status does not matter, location does not matter, just aggregate time.

 

In this case, they were not counting Roee because he was not biologically related to K.R.K. and Adiel did not meet the residency requirement. But, they were married and Roee was a legal parent. So, they sued.

 

This case had many different legal claims made, but the most important ones are based on Constitutional law, drawing on the Supreme Court’s decisions in United States v. Windsor, 570 U.S. 744 (2013), Obergefell, 135 S. Ct. 2584, and Pavan, 137 S. Ct. 2075,:

 

They asserted that a State Department policy requiring that both parents be biologically related to a child in order to consider that child born in wedlock, and the application of that policy to deny K.R.K.’s passport application, (1) was contrary to the text of the Immigration Nationality Act; (2) infringed on the substantive due process rights under the Fifth Amendment to the Constitution of the Kivitis to marry, procreate, and raise their children, and of K.R.K. to obtain United States citizenship at birth; (3) discriminated against the Kivitis by treating their “marriage, as well as the marriages of other same sex couples, as second-class” because under the State Department’s policy, a married male, same-sex couple will never be able to have their child considered to have been born in wedlock. They also argued that K.R.K’s equal protection rights are violated because the policy “penalizes children for the circumstances of their birth.’”

 

There are two ways someone can be a U.S. citizen: birth or naturalization. Congress has generally provided that under certain circumstances, a child “born . . . of” at least one U.S. citizen parent receives U.S. citizenship at birth even if that child is born outside the United States. 8 U.S.C. § 1401. For such children, Congress set forth different requirements for the acquisition of citizenship at birth depending on whether the child in question was born in or out of wedlock.

 

First, 8 U.S.C. § 1401, which applies where a child is born to a married couple, “establish[es] a range of residency and physical-presence requirements calibrated primarily to the parents’ nationality and the child’s place of birth.” Sessions v. Morales-Santana, 137 S. Ct. 1678, 1686 (2017). As relevant here, it provides that U.S. citizenship is granted at birth to:

 

(c) a person born outside of the United States and its outlying possessions of parents both of whom are citizens of the United States and one of whom has had a residence in the United States or one of its outlying possessions, prior to the birth of such person.

 

(g) a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years.

8 U.S.C. § 1401(c), (g).

 

A second statute, 8 U.S.C. § 1409, applies to “[c]hildren born out of wedlock” and imposes additional requirements for the conferral of citizenship at birth. 8 U.S.C. § 1409.

 

The Department of State has provided written guidance for its officials adjudicating passport applications, set forth in the Foreign Affairs Manual (“FAM”) which includes the Department of State’s interpretation of the Immigration and Nationality Act as it related to determine whether children born abroad are U.S. citizen at birth. This FAM has never been approved by Congress nor been subject to notice and comment rulemaking, which is how laws usually are decided in the U.S.

The FAM’s interpretation states that any citizen parent through whom US citizenship is sought to be conveyed must be biologically related to the child. It also finds that a child is only born in wedlock if the child’s biological parents were married to each other at the time of the birth of the child. 8 FAM §304.1-2(c).

 

The FAM made clarifications to this rule as time progressed:

 

  • In 2014 the State Department altered the FAM to provide that “a woman may establish a biological relationship with her child either by virtue of being the genetic mother (the woman whose egg was used) OR the gestational mother (the woman who carried and delivered the baby). This means a lesbian couple could both be considered to be the biological mothers even though DNA shows a relationship to only one mother. Specifically, a child born abroad is deemed to be born in wedlock to two US citizen women where the gestational mother is the legal parent of the child at the time of birth in the location of birth and the genetic parents are an anonymous sperm donor and the US citizen wife of the gestational legal mother
  • The FAM provides that a child born abroad to a surrogate gestational mother who is not the child’s legal parent at birth, but who legal and biological parents are a U.S. citizen mother and a US citizen father, is considered to have been born in wedlock to two U.S. citizen parents
  • It also states that where a child is born abroad to a married US citizen gestational mother who is the legal parent of the child at the time of the birth and a US citizen biological father, the child is considered to have been born in wedlock to two U.S. citizen parents, even where an anonymous egg donor was used.

 

One thing all of these details have in common is that the married couple is not comprised of two men. An official of the State Departments’ Bureau of Consular Affairs stated during a deposition for this case that two married men can never have a child that the State Department considers to have been born in wedlock. Instead, the children of such marriage are always deemed to have been born out of wedlock and must have their claims to citizenship at birth adjudicated through §1409(a), the provision for out of wedlock births, stated above.

 

This was a ludicrous finding that violated the U.S. Constitution’s equal protection rights. Indeed, the District court in this case found the State Department to be wrong. It did so by analyzing the exact statue the State Department used to support its decision, 8 USC §1401 which is stated above.

 

The issue of this case was whether the language “born…of parents” in this statute signifies that this provision applies only where both married parents are biologically related to a child. The Court found this phrase did not limit the definition in this way and the Court parsed each section of the phrase “born…of parents.”

 

  1. “Parents”

 

The Court found that nowhere in the Immigration and Nationality Act (the set of laws the State Department operates under, and what their FAM is based on) is the term “parent” defined to include only those with a biological relationship to a child. Indeed, not even at common law, the part of law derived from custom and judicial interpretation, is the term “parent” defined to only a biological relationship to a child.

 

So, the State Department loses there.

 

  1. “Born…of”

 

This is the part of the statute where the State Department thought it had a winning argument. It didn’t. The State Department argued that the dictionary definitions of “born” and “of,” when combined, mean that the child “originates or derives from those parents,” which it further argues can be the case only if there is a biological relationship to both of those parents. This is 2020, that argument is awful and the Court stated why for two reasons.

 

The first reason: the phrase “born . . . of parents” must still be viewed against the backdrop of the common law presumption of parentage, which effectively considered a child to be born of parents consisting of a biological parent and that parent’s spouse at the time of the birth, without requiring proof that the spouse had a genetic relationship with the child.

 

The second reason: “even under the State Department’s approach, the term “born . . . of” is susceptible to a range of interpretations. A child could fairly be deemed to originate from parents other than through a genetic relationship, such as where two married parents both play a fundamental and instrumental role in the creation of the child, for example by, as here, together planning and supporting the use of surrogacy and ART fertilization to bring about the birth of a child to whom they have both committed in advance to be a parent. Indeed, the elasticity of the term “born . . . of” is evident from the State Department’s recent change in policy, untethered to any change in the statute, to include within this term gestational mothers with no genetic relationship to the children they bear.”

 

Looks like the State really stepped in it that time.

 

  1. “Blood relationship”

 

This next section shows the typical analysis a Court does when interpreting a statute. The Court will always look to see what Congress has written in the past in other places to try to understand what Congress was thinking when it wrote the law being analyzed. When Congress was writing all these laws on how to deal with children born abroad, it required biological relationships in some scenarios but not in others. So, the Court correctly finds that Congress knew how to include a biological relationship requirement where it wanted one. The fact that it did not explicitly state so in this statute means it did not think a biological relationship was the only way to be a parent. Nice!

 

This entire case really had one basic but major issue: The State Department was treating a same-sex male couple differently than everybody else. According to them, two men cannot be the parents to one child because they cannot both be biologically related to it, but two women could be. Or a heterosexual couple that uses DNA from anonymous donors can both be the parents even though neither of them are the biological parent. Furthermore, to consider the child to be born out of wedlock when the parents are married is preposterous.

 

The Court found the State Department’s disparate treatment of same sex male couples to be inappropriate. Indeed, the same official from the Bureau of Consular Affairs who said two married men could never have a child that the State Department considered to be born in wedlock, testified in his deposition that it is “uncommon” to require DNA testing to establish a biological relationship, but “much more common” in cases involving ART, which reveals that even when ART is used, proof of a biological relationship is not always required. So why was it required here?

 

The State Department admitted that it applies § 1401(c) in certain cases without ever requiring proof of a biological relationship, which shows that it tended to advantage certain opposite-sex couples as compared to same-sex couples in providing a benefit related to marriage. See Pavan, 137 S. Ct. 2075 (finding unconstitutional a state law and practice of including the name of the mother’s male spouse on the child’s birth certificate but not including the name of a mother’s female spouse).

 

It has been over five years since same-sex marriage has been legalized in all 50 United States. However, some laws and their interpretations still need to catch up.  The structure of a family has dramatically changed in the last fifty years and the laws need to change in order to reflect that structure. There is also no room for antiquated and restrictive ideas of what a family is in modern society. This is 2020. Those ideas belong in the last century.

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