Photo by Tim Bish on Unsplash

The U.S. Department of State recently announced a policy change allowing the children born abroad to U.S. citizens in same-sex marriages to be recognized as U.S. citizens under the Immigration and Nationality Act.

The first baby born using IVF (in-vitro fertilization) was born in 1978, and the first successful gestational surrogacy took place in 1985, yet here we are, 43 years later, and the United States has finally officially recognized the rights of U.S. citizen parents to pass on citizenship to their children who are born overseas through IVF, surrogacy, or were carried and given birth by their non-U.S. citizen spouse.

You may remember our blog from October of last year, when we told you the story of Andrew and Elad Dvash-Banks, a married gay couple who used a surrogate in Canada to give birth to their twin sons, Ethan and Aiden. Andrew is American and Elad is Israeli. Sperm from both fathers was used for the pregnancy, and Aiden is the biological son of Andrew, while Ethan is the biological son of Elad. Due to baby Ethan having no biological relation to his American father (Andrew), the U.S. government told the Dvash-Banks family that even though both sons (twins!) were born in Canada, Aiden would be granted American citizenship but Ethan would not.  

The Dvash-Banks won citizenship for son Ethan by suing the government in a case that went up to the 9th Circuit Court of Appeals. Several other same-sex families also sued the government to gain citizenship for their children born overseas. 

Beginning now, families in similar situations will not have to sue the State Department to gain U.S. citizenship for their children. 

On May 18, 2021, the U.S. State Department updated its policy - specifically by updating section 301 of the INA (Immigration and Nationality Act) to state that children born abroad through assisted reproductive technology to U.S. citizens will automatically acquire citizenship at birth. 

The following requirements must be met:

• at least one of the parents must be a U.S. citizen.
• The parents must be married to each other at the time of the birth.
• The child must have a genetic or gestational tie to at least one of their parents (and meet the INA's other requirements).  

Previously the State Department required that a child born abroad have a genetic or gestational tie to a U.S. citizen parent in order to get citizenship. 

We believe that the ability of U.S. citizens to pass on their U.S. citizenship to their children, no matter how conceived or the sexual orientation of the parents, is an important right in the United States, and we are glad that the State Department has updated its policy to reflect common practices of birth today. 

If you have any questions about U.S. citizenship for you or your child, or would like to have an appointment with one of our immigration attorneys, please reach out to us at (757) 422-8472, or send us a message on our website. You can also schedule an appointment with one of our attorneys by clicking on this link.