Judge overrules State Department after it denied US passport to gay couple's baby born to UK surrogate

Child to be considered citizen since birth, according to judge

Graig Graziosi
Tuesday 01 September 2020 18:09
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A federal judge ruled that the US State Department must issue a passport to the daughter of a married gay couple despite the Trump administration's insistence the girl does not warrant birthright citizenship.

The little girl, Simone, is the daughter of Derek Mize and Jonathan Gregg. Both men are US citizens, but Simone was born from one of the father's sperm and an anonymously donated egg through a gestational surrogate located in the UK.

NBC News reported that the State Department has been denying passport applications to children of same-sex couples if they have a biological parent that is not a US citizen. In order to become a citizen, the child would have to go through additional naturalisation steps.

Mr Mize and Mr Gregg filed a lawsuit in January 2019 challenging the State Department's decision. They claimed that denying their daughter a passport was in violation of the law and of their constitutional rights, and called on a federal court to declare Simone a citizen.

The fathers won their on Thursday when US District Judge Michael L Brown ruled that Simone was a US citizen since her birth. The judge ordered the State Department to issue the child a passport.

"When we brought Simone into this world, as married, same-sex parents, we never anticipated our own government would disrespect our family and refuse to recognise our daughter as a U.S. citizen," Derek Mize said in a statement following the ruling.

The fathers' attorney, Omar Gonzalez-Pagan, said he was "very pleased the court found that the agency's policy was irreconcilable with the law and our Constitution's guarantee to equality because it treated the children of married, same-sex parents differently from the children of other married parents."

The judge dismissed the family's claims that their constitutional rights were violated since the ruling determined the child was a natural citizen since birth.

Simone's fathers applied for and received a green card for their daughter to ensure that she was protected for the duration of the trial.

The State Department attempted to use that against the fathers by asking the court to dismiss the case on the grounds that the fathers were pursuing alternative methods for naturalisation by obtaining a green card.

The judge ultimately rejected that line of thinking.

Aaron C Morris, the executive director of Immigration Equality, told NBC News that State Department's reasoning amounted to "separate-but-equal" arguments over citizenship.

"It was very good to see the government was setting up what looked a whole lot like a 'separate-but-equal' argument, explaining that, 'Sure we denied your kid's citizenship, but you have this other pathway toward citizenship,' and the judge rejected that," Morris said. "You still have to obey the law, even if there is some other means to get to citizenship, they are not the same."

The State Department said it was aware of the court's ruling "and is reviewing the decision with the Department of Justice. We have no further comment at this time."

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