On citizenship for children of married gay couples born overseas

This is a rather strange and depressing story that popped up in the Washington Post yesterday. It deals with an American woman named Allison Blixt who currently lives in London with her wife, Stefania Zaccari, and their two sons, Massi and Lucas, ages two and four respectively. When Lucas was born, Allison went to the American embassy to register his birth and obtain an American passport for him. She was shocked to discover that no passport would be issued because the people at the embassy told her that Lucas did not have birthright citizenship.

Stefania and I have lived in London since 2008, and we had our first son, Lucas, in January 2015. A few weeks after his birth, we bundled him up and took him to the American Embassy. I didn’t foresee any issues with reporting his birth and receiving his American passport. I’m a lawyer, and when I filled out the forms, the process seemed completely straightforward. According to the law, if a married American, who has spent the required amount of time in the United States, has a child overseas, that child is American. Simple.

When our family was called up to the counter, the interrogation began: So, who carried your son? Stefania, who is Italian, said she did. Whose eggs were they? Again, Stefania’s. I thought to myself, Are you joking? This line of questioning seemed irrelevant, invasive and offensive. This went on: Who was the donor? Where is the donor from? Then we were told to wait. We sat for a long time. Around us, other families — straight couples with babies in tow — came and went. Finally, an official informed us that Lucas would not receive American citizenship, because I am not his genetic or gestational mother.

You may be surprised to hear this, but I’m totally on this couple’s side. While I understand that there are still people who have issues with gay marriage, the current law is clear in this case. Allison and Stefania are legally married and Lucas is their child. The grounds being cited to deny Lucas citizenship seem rather shaky, but there are gray areas in the law (we’ll get to those in a moment) that could cause trouble for the couple. There was no issue with Massi’s citizenship as Allison gave birth to him.

The factors complicating the situation appear to relate to a question of genetic parentage. Stefania is the one who carried and delivered the child and a donor was used to fertilize the egg. As such, Allison has no genetic connection to Lucas. But the donor has no claim of parental rights and marriage is generally how the parental lines are defined. (If a man and a woman get married when the woman is already pregnant with the child of another man, known or unknown, the husband is still the parent/guardian upon the child’s birth unless the mother disputes that.)

Title 8 Chapter 12 section (e) lays out the conditions required for birthright citizenship pretty clearly and it would seem that Lucas qualifies. (Or at least he should, in my opinion.)

The following shall be nationals and citizens of the United States at birth:

(e) a person born in an outlying possession of the United States of parents one of whom is a citizen of the United States who has been physically present in the United States or one of its outlying possessions for a continuous period of one year at any time prior to the birth of such person;

I suppose this all revolves around the legal definition of the word “parent.” That’s a bit of a gray area as the laws struggle to catch up with changes in societal norms. Traditionally, a “parent” was simply defined as the father or mother of a child, and originally only those children born within wedlock. But more recent legal definitions have expanded that to be the “father or mother or as otherwise may be defined by statute such as through adoption or same-sex relationships.”

Other changes in some areas go further, including “individuals who cause a child to be born through a surrogate mother; those who adopt a child, those who have care or control of a child through a foster care arrangement; and those who, though being of a same-sex union, have the care or custody of a child, or some combination of the above.”

So it’s possible that one could argue against Lucas having birthright citizenship based on genetics depending on which definition is in play for their particular circumstances. But do we really want to go there? There is nobody else claiming parental rights in this situation and Stefania is married to Allison. Why should Lucas not be considered a citizen under the provisions of Title 8?

For the record, the couple sued the State Department in 2018 over this matter. Just this month a judge dismissed an attempt by the State Department to have the suit thrown out, so it is still pending.