Trump administration loses fight to stop child born abroad to gay couple from becoming US citizen

Same-sex couples asked to prove biological parentage but heterosexual couples typically are not

Oliver O'Connell
New York
Friday 16 October 2020 15:29 BST
Trump administration loses fight to stop child born abroad to gay couple from becoming US citizen
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A federal appeals court has ruled against the Trump administration’s attempt to deny citizenship to one of two twins born overseas to a gay married couple.

The 9th Circuit Court of Appeals in San Francisco concluded on Friday that an earlier decision by a Los Angeles trial judge should stand and that four-year-old Ethan Dvash-Banks is an American citizen.

Ethan was conceived with the sperm of his Israeli biological father and born in Canada through surrogacy.

His other father is a US citizen, and a district court ruled in May 2019 that legally a child does not have to prove a biological relationship if their parents were married at the time of their birth and that Ethan should be issued a passport.

The State Department appealed leading more than a dozen Democratic senators to write to secretary of state Mike Pompeo condemning an action that would result in family separation.

The Dvash-Banks case is not an isolated incident, the senators wrote. The state department has told many same-sex couples “that their marriages are, by definition, invalid, and that any children they may have abroad risk becoming stateless.”

Married heterosexual couples are given the presumption of parentage and are not typically asked to prove that their children are biologically related to them. This is assumption is not afforded to same-sex couples.

The Immigration and Nationality Act was written in 1952, long before surrogacy, sperm donors, fertility treatments, and same-sex marriage

On Friday, a three-judge panel ruled unanimously that it was bound by precedent from previous decisions and issued a short memorandum without hearing arguments.

Andrew Dvash-Banks, Ethan’s American father, said he was thrilled by the ruling on his son’s citizenship as it removes the uncertainty that has hung over the family for almost four years.

The unusual case began not long after the twins were born. The American consulate in Toronto denied Ethan’s citizenship after DNA tests that showed he was the biological son of Elad Dvash-Banks, an Israeli citizen.

His twin brother, Aiden, was given citizenship because he was the biological son of Andrew Dvash-Banks.

Andrew met Elad when he was studying in Israel. As they couldn’t legally marry in either of their home countries, they moved to Canada and wed in 2010.

The twins were born by a surrogate in September 2016 using sperm from each of the fathers and donor eggs.

Immigration Equality, an LGBTQ immigrant rights group, filed the lawsuit seeking the same rights for Ethan as his brother.

Aaron Morris, executive director of Immigration Equality, and one of the family’s lawyers said that District courts in Maryland, Georgia, and Washington, DC, have made similar rulings and that the Department of Justice conceded that it would lose if the court applied the law in the case.

“This seems to be an issue they’re not willing to budge on,” Mr Morris said. “Every federal court that has heard the government’s argument has ruled against them.”

The State Department said it was reviewing the decision with the Department of Justice.

With reporting from The Associated Press

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