Andrew and Elad’s story began typically. They met, fell in love, got married, and decided to have children together. Simple, right? Andrew is a United States citizen who grew up in southern California. He also has dual citizenship with Canada. Elad, by contrast, is an Israeli citizen. In 2011 — when the two decided to marry and live their lives together — they moved to Canada, where same-sex marriage was legal. (You may recall that the Supreme Court did not catch the U.S. up until several years later.)
When it came time to decide on children, both men agreed that they wanted kids. And like many parents, both wanted a child genetically related to them. They sought the help of a fertility clinic and the modern magic of assisted reproductive technology. With the aid of an anonymous egg donor and gestational surrogate, the couple’s twin boys were born last year. To its credit, Canada recognized the couple as legal parents to the children, and named both dads on each of the twins’ birth certificates.
Discriminatory Discretion. A problem arose when the couple decided to move to the United States. They did not expect problems, since Andrew is a U.S. citizen, and they expected the children to be entitled to U.S. citizenship as well. Andrew recalls his appointment with U.S. Citizenship and Immigration Services. “I paid my $250 per child for the application, and then they demanded to see the results of a DNA test.”
Andrew argued that he was the legal parent and DNA shouldn’t matter, but immigration authorities disagreed. It turns out that the government was right. The U.S. Immigration Code does actually tie the right to citizenship to DNA. Andrew asked the immigration official if he and Elad had been a heterosexual couple whether she would have demanded to see the result of DNA testing. The immigration officer responded accurately that it was in the officer’s discretion to require DNA proof.
Per the request from immigration authorities, Andrew and Elad paid the $900 for DNA testing to confirm what they already knew from the embryo transfer and from looking at the boys’ faces. One was genetically related to Andrew, one to Elad. And only one was entitled to U.S. citizenship.
Path Forward. The family is back in the U.S., but one of the twins is here only on a visitor’s visa. After consulting with multiple attorneys, the parents have been advised that no option is simple or pretty. Their options include Andrew sponsoring his son as his “step-son” for a green card or Andrew attempting to adopt his son, despite already being on the child’s birth certificate.
The Cleaner. Deborah Wald, a San Francisco-based ART specialist, has helped many parents through surrogacy legal mazes. Wald recalls that she has worked with multiple clients who went to India to have a child through surrogacy, only to find out after DNA testing that due to clinical error (aka an embryo mix-up) the child was not genetically related to them. And, in fact, the kids were not genetically related to any known person. These parents also faced the U.S. immigration code denying their non-DNA-related children their American citizenship.
Wald notes that one strategy she has been able to use in the past is to press the government’s definition of adoption. Within the federal definition, established through case law and regulations, is a recognition of an “adoption” based on a specific multi-factor test. This test is used for many countries’ adoptions, and, by chance (or design), California parentage orders (like those used in surrogacy) fit within the federal definition. For Wald’s embryo mix-up cases, they have been able to have the children recognized as adopted — pursuant to the quirky federal definition — and the parents have been able to pass on their citizenship through that recognition.
Although Wald has become a go-to fixer for these situations, she warns potential parents about cross-border surrogacy — whether that border be with another country or with Kentucky. “Too many parents focus solely on the medical piece, and pay little attention to the legal issues.” Those legal issues are the ones that can make life very complicated.
Here’s hoping that Andrew and Elad’s other twin boy finds U.S. citizenship without too much cost and complication. If all else fails, he can always rely on DACA. Oh, wait….
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