Originally published by The Daily Beast
No parent can ever be fully prepared for the arrival of a new baby. But when Roee and Adiel Kiviti brought home their newborn daughter Kessem two months ago, they figured that they were as ready as they could be. After all, they’d gone through the same process two years earlier with their son Lev, who, like Kessem, was born with the help of an egg donor and a gestational surrogate in Canada.
“It was as straightforward as one can imagine,” Roee told The Daily Beast, recalling the ease of bringing Lev home in late 2016, the infant’s newly printed Canadian passport in hand, soon to be supplanted by an American one. But this February, when Kessem’s fathers contacted the U.S. consulate in Calgary to obtain a Consular Report of Birth Abroad for their daughter—the legal equivalent of a birth certificate for Americans born outside of the United States—something was different this time.
“They first indicated that they needed proof of our marriage, which I found quite odd,” Roee said. “They needed the original marriage certificate, which we didn’t have with us, but I didn’t actually think anything more about it. I thought, ‘We don’t have time for this, we’ll just deal with it in the U.S.’”
Roee and Adiel obtained Kessem’s Canadian passport—a stopgap, they figured, until they could get her U.S. passport back home—and traveled back to their home in the United States.
But Kessem was about to become the latest victim of a government policy that effectively de-recognizes her parents’ marriage, granting her no automatic rights to American birthright citizenship despite the fact that both her fathers are U.S. citizens. That policy, Kessem’s fathers told The Daily Beast, poses a unique threat to LGBT families, and could change the decades-old legal understanding of what the word “family” even means.
“This is a very clear attack on families, on American families,” Roee, who married Adiel in California in 2013, told The Daily Beast. “Denying American married couples their rights to pass their citizenship, that is flat-out discrimination, and everyone should be concerned about this.”
For years, President Donald Trump has called for the elimination of birthright citizenship for the children of undocumented immigrants who are born on American soil. Those children, slurred as “anchor babies,” are accused of being birthed with the sole purpose of tethering their non-citizen parents to the United States. The Trump administration’s promised executive orders ending this “loophole” have not materialized, but the president’s war on birthright citizenship has many fronts—and one little-noticed State Department policy has now resulted in a reverse version of Trump’s “anchor baby” scenario, where the children of U.S. citizens born abroad are effectively being stopped at the border.
Last summer, the State Department issued new rules unilaterally changing the department’s interpretation of the Immigration and Nationality Act (INA), a 1952 law that, along with the 14th Amendment, codifies eligibility for U.S. birthright citizenship.
The U.S. Department of State interprets the INA to mean that a child born abroad must be biologically related to a U.S. citizen parent,” the State Department’s website says. “Even if local law recognizes a surrogacy agreement and finds that U.S. parents are the legal parents of a child conceived and born abroad… if the child does not have a biological connection to a U.S. citizen parent, the child will not be a U.S. citizen at birth.”
The Kivitis are each biologically related to their children. Under the policy, however, children born via gestational surrogacy and other forms of assisted reproductive technology (ART) are considered to be born “out of wedlock,” in the State Department’s words—even if their parents, like Roee and Adiel, are legally married.
“They basically take our marriage, and they say ‘It doesn’t mean anything. Your child was born out of wedlock,’” Adiel said. “We were there when she was born, she took her first breaths in our arms. Make no mistake: We are her parents—we are her only parents on her only birth certificate.”
Children born out of wedlock face higher legal and logistical hurdles to obtaining birthright citizenship: In addition to submission of DNA tests proving genetic links to U.S. citizen parents, their parents must be able to testify that they can support their children financially, and must prove that they have been present in the United States for at least five years prior to the child’s birth. Adiel, who was born in Israel, only recently became a naturalized U.S. citizen. He had lived in the United States since May 2015, and for one year in law school, but still fell short of five years.
“We are now in a very, very strange scenario,” Adiel said. “We are both American citizens; we live in the U.S.; I have a business here, Roee has his job here; we file our taxes as a married couple here… and the State Department is saying that our daughter isn’t entitled to U.S. citizenship because she was born ‘out of wedlock.’”
For parents of non-traditional families, the policy change has been a disaster, leaving them to navigate the labyrinthine immigration legal system with little guidance from the State Department and, at the moment, little recourse for appeal. Children of U.S. citizens are put at risk of deportation or even statelessness—despite no textual legal basis for the policy. The INA, signed into law when gestational surrogacy was science fiction and same-sex marriage was a fantasy, makes no reference to biological relationships in determining the citizenship of the child of a U.S. citizen born abroad to married U.S. citizens.
When the Supreme Court struck down the Defense of Marriage Act in 2013, lifting a ban on federal recognition of same-sex marriages, the Department of Homeland Security issued a guidance declaring that “just as [U.S. Citizenship and Immigration Services] applies all relevant laws to determine the validity of an opposite-sex marriage, we will apply all relevant laws to determine the validity of a same-sex marriage.” On its face, immigration attorneys told The Daily Beast, that would include the INA.
That “assumption of parentage,” as the State Department calls it, now seems to LGBT parents to be reserved solely for heterosexual married couples. Only same-sex couples, whose non-traditional family structure sticks out like a sore thumb, end up facing scrutiny over how their children came into the world, parents told The Daily Beast—and as a result, whether they are eligible for birthright citizenship.
“State says children born through ART require extra paperwork for proof of citizenship, but there are no boxes on any citizenship forms which indicate ART is used,” one woman, a former U.S. military intelligence officer who is married to a senior U.S. military officer, told The Daily Beast. When their son was born on an American military base abroad last fall, it took months for their application for his U.S. passport to be processed—and only after they submitted reams of paperwork proving that one of the two women was the gestational mother, confirming whether or not the former officer had a “genetic relationship” with her son, and “physical evidence” that they had used an anonymous sperm donor.
“If we did [in-vitro fertilization] and were hetero, we could have a different egg and sperm that were not genetically related to us, but due to… the ‘assumption of parentage’ which exists for married couples, they would not question the birth,” said the former officer, who asked to remain anonymous due to the sensitivity of her wife’s position in the military.
“It was so dumb, regardless—we were both American citizens, so it should have been a non-issue,” the former officer added, noting that many LGBT service members having children overseas are facing similar pushback from the State Department, but the random nature of the problems, and their resolution, makes her believe that “it all depends on the individual who is handling your case and their personal feelings.”
“I went back and forth with State and finally ended up receiving a call from the chief of the office who handles the citizenship paperwork,” the former officer said. “She ended up landing on, ‘You can just send me an ultrasound with your wife’s name on it, that’s good enough.’ So, obviously, this is not real policy if they can pick and choose how to handle it.”
That slapdash approach to the department’s policy, and a remark made by personnel at the Army Passport Office noting that this was the first case they’d heard of the State Department pushing back, “makes me concerned for the Trumpitization of our government offices,” the former officer said.
In response to a detailed list of questions regarding the policy, its disproportionate effects on same-sex couples, and whether all parents seeking a CRBA are asked if their children were the result of surrogacy, a State Department spokesperson told The Daily Beast that “the Department of State does not comment on pending litigation or arbitration.”
For other parents, hoping to squeeze through the cracks in a broken system isn’t an option—which means taking the federal government to court to defend their family.
When Allison Blixt moved to London in April 2008 to be with her girlfriend, Stefania Zaccari, her feelings were all over the place.
“On the one hand, I was so excited, and so happy, and so lucky that we could be together, but I was also super-angry that in order for that to happen, I had to move,” Allison said. “I had to leave everyone that I knew and loved, and I had to leave a life that I wanted in New York.”
Allison, a lawyer from North Carolina, and Stefania, a tourist visiting from Italy, had met at a bar in New York City two years earlier, a moment that formed a relationship that has largely been defined by their distance. For two years, they traveled back and forth, trying and failing to find a way that Stefania could come to the United States for longer than a 90-day stretch. They even broke up briefly, the Defense of Marriage Act standing as a seemingly insurmountable obstacle to a bi-national lesbian relationship.
“Moving away was the only way for us to be together,” Allison told The Daily Beast. “And we built a life here.”
The pair knew that they wanted children, but, like so much in their relationship, much of it came down to timing. They decided that Stefania, the older of the two, would go first, and their first son, Lucas Alexander Zaccari-Blixt, was born in January 2015, slightly more than three weeks after Allison and Stefania converted their civil partnership to a valid marriage.
“I thought he would get citizenship, because we were married,” Allison said. “He would be viewed as my child, no question.”
But when she went to the U.S. embassy in London to obtain Lucas’ CRBA, there were a lot of questions—many of them deeply intrusive.
“I was thinking, ‘This is not going to end well,’” Allison said.
After hours in the embassy, Lucas’ application for a U.S. passport was denied on the grounds that he was not genetically related to Allison, despite her name on his birth certificate and her marriage to his birth mother.
“I remember standing in the embassy in shock. All that emotion that I had when we first moved here, being rejected, was now being re-lived, but at the time, it wasn’t about me—it was about my son,” Allison said. “I’m not a cry-in-public kind of person, so I tried to hold it in, but I was really, really upset.”
When Allison gave birth to their second son, Massimiliano, in February 2017, the family went to the embassy to apply for his passport—and to reapply for Lucas’, hoping that the intervening years would mean a different result. Massimiliano obtained his passport, but Lucas’ was denied again, this time on the same “out of wedlock” grounds that the State Department used to deny Kessem’s passport.
“They’re basically saying, ‘Yes, Massi is your son, but Lucas isn’t.’ How do we explain that to our kids, that they’re not the same? That’s appalling,” Allison said. “He’s being treated like someone who has no connection to the U.S., much as a stepchild would. It’s offensive.”
For parents caught in the middle of the State Department’s policy, navigating travel and legal residency has become a comedy of errors. According to Allison, it’s “almost entertaining” when she returns to the United States with her family, slapping down a stack of American, Italian and British passports.
Even U.S. border agents—a cohort not known for their friendliness—have been “quite surprised that Lucas isn’t American,” Allison said.
But for LGBT families, who have only enjoyed the nationwide right to marriage for less than five years, even a curious look from a border agent is a humiliating reminder of the patchwork nature of legal protections for non-traditional families.
“Where is my child supposed to live? Is she supposed to go back to Canada?” asked Adiel rhetorically. “Can I live there? The scenario is just ridiculous. I cannot believe that these are the values of the American government.”
Immigration Equality, a nonprofit that advocates for LGBT people in the immigration system, has taken Allison and Stefania’s case to federal court, where they have argued that the policy “hurts families and undermines the familial relationships of same-sex parents.” The group has had early success arguing that children of married same-sex couples born abroad are entitled to birthright citizenship—in a concurrent case involving Ethan Dvash-Banks, the 2-year-old son of a gay couple, a federal judge ruled in February that “the basis for the State Department’s imposition of a biological requirement is its strained interpretation” of existing immigration law.
That success was repeated on Wednesday, when a federal judge denied the State Department’s motion to dismiss Allison and Stefania’s lawsuit, and called the situation “outrageous.”
“The judge’s decision to hear this case is an important step forward for the Zaccari-Blixt family and all families who are currently being denied equal treatment under the law,” said Aaron C. Morris, executive director of Immigration Equality and the couple’s attorney. “The government should change its policy, and we will keep fighting until they do.”
But the State Department’s decision to appeal that ruling, Allison said, could mean that the question of her son’s citizenship could drag on for years.
“When the government appealed last week, I mean… I thought, I can’t believe it,” Allison said. “If we want to actually move to the U.S., we can’t just wait until the case is resolved. We have to find other solutions.”
For some parents, such solutions are within reach. When Adiel, born an Israeli citizen, became naturalized, he was told that any future children who obtained a green card were immediately entitled to naturalization as well—meaning that if Kessem obtains a green card, she will functionally be recognized as a naturalized American citizen.
But to Kessem’s fathers, that backdoor to U.S. citizenship represents a capitulation—an admission that the State Department was right to withhold her birthright citizenship in the first place.
“On the one hand, we want to do what’s best for our child, and as parents, we’ll do just that.” Adiel said. “I’m not going to sit by and watch her get deported.”
But, Adiel added, “there is a moral reason to have this fight, and not to cave.”
“You see a gay man running for president on the cover of Time magazine with his husband, and then you get a call from the State Department essentially saying that your ‘out-of-wedlock’ daughter is not entitled to a passport,” Roee said. “You’re thinking, what is this parallel universe that we’re living in?”
The ability to fight the government’s policy is, itself, evidence that American citizenship has a special meaning, Allison said—and that the privileges afforded by citizenship need to be exercised on behalf of those who aren’t so lucky.
“We are very lucky—we were able to live abroad to be together, we were able to have two amazing children, we have a great life here… and there are a lot of people in a lot worse situations than ours,” Allison said. “And because of that, it also means that we are lucky enough to be in a position where we can fight it.”