Same Sex Couples, Surrogacy, and the Children’s Citizenship

The happy couple Elad and Andrew Dvash-Banks had to marry in Canada before the United States legalized same-sex marriage. The spouses, one an American citizen and the other an Israeli citizen with a green card, had twins through a surrogate mother where both children were born in Canada. The couple requested American citizenship for both twins through the Immigration and Nationality Act, which states that children born to at least one U.S. parent receives U.S. citizenship. The State Department, on the other hand, interpreted this act as the child biologically related to the parent receives citizenship. As a result, the child genetically related to the U.S. citizen received their citizenship, while the son genetically related to the foreign-born father was denied citizenship.

The couple has decided to sue the United States due to the unequal treatment between same-sex couples and heterosexual couples, the latter couple who would not encounter the same type of scrutiny done by the State Department regarding genetic relationship, or the denial of citizenship to children whose legal parent is an American citizen as described in the Immigration and Nationality Act. The case is currently pending litigation, where the judicial decision may have significant changes to family planning through surrogacy.

Surrogacy can be a beautiful method for couples to create families, but unfortunately can become legally problematic. In order to ensure a surrogate process with ease and happiness, it should strongly be considered to hire a lawyer with experience in the surrogate field.

To learn more about the surrogate process, or to seek counsel for a family planning process or any other family law matters, please do not hesitate to contact Evie P. Jeang, Managing Partner of Ideal Legal Group and Founder of Surrogacy Concierges.

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