Case Update: U.S. Citizenship, Child Born through Surrogacy outside of U.S., Same Sex Couple Parents

Roee Kiviti and Adiel Kiviti are married fathers to two children born through surrogates in Canada.  Their first child, LRK, born in 2016, used Roee’s sperm and has a biological relationship with Roee.  KRK, their second child, born in 2019, used Adiel’s sperm and has a biological relationship with Adiel.  The Canadian courts issued orders establishing that Roee and Adiel were the legal parents of both children and not the surrogates.

Shortly after LRK’s birth, upon re-entering the United States, the couple applied for and obtained a U.S. passport for their son.  Shortly after KRK’s birth, when taking the same steps, the U.S. Department of State concluded KRK was not a U.S. citizen under the Immigration and Naturalization Act (INA).  The DOS denied KRK a passport.

Roee and Adiel sued the U.S. Department of State arguing, among other things, that the government’s denial of a child, born in wedlock to two U.S. naturalized citizen parents, was contrary to the INA.  The court focused on this argument and found in favor of Roee and Adiel, concluding, on June 17, 2020, that their daughter is a U.S. citizen. 

The INA has a few relevant provisions for this case. 

8 USC 1401(c) provides the rules for a child born in wedlock outside of the United States to 2 U.S. citizen parents to obtain U.S. citizenship.  8 USC 1401(g) provides the rules for a child born in wedlock outside of the United States, but where one of the parents is an alien and the other is a U.S. citizen, requiring the U.S. citizen parent to have resided in the U.S. for a period of no less than five years (at least 2 of those years after the age of 14).  A child born outside of wedlock and outside of the United States can obtain U.S. citizenship by adhering to additional requirements, beyond those in 8 USC 1401 (see 8 USC 1409).  

The Foreign Affairs Manual, which is the written guidance the U.S. gives to its officials who adjudicate U.S. passport applications, makes clear that if a child is basing his/her U.S. citizenship on a U.S. citizen-parent, then that citizen-parent must be biologically related to the child (8 FAM 301.4(D)(1)(a)).   FAM addresses certain issues related to children born through assisted reproductive technology. It makes a distinction based on whether the married parents are of different genders or the same gender.  FAM indicates that a child born outside of the United States to two married men, is never born “in wedlock” therefore making 8 USC 1409, and its additional requirements the applicable standard that the State Department was applying when determining when to issue a U.S. passport to KRK. 

The U.S. District Court for the District of Maryland spent time parsing over the “plain language" in 8 USC 1401 and 8 USC 1409.  The debate surrounded what makes a person a “parent" of a child - is it really based on biology as FAM would seem to indicate?  The court concluded that Adiel and Roee were the parents and that KRK was “born of” these two married parents, granting her U.S. citizenship under 8 USC 1401(c) (even though she did not share a biological relationship with Roee).  The court focused on its reading of “born … of” and made note to existing case law that permits a father who is not biologically related to the child’s mother, but is married to her at the time of birth, to be the child’s parent.  The court also focused on the fact that 8 USC 1409 added the words “blood relationship,” which is missing from 8 USC 1401, therefore concluding that 8 USC 1401 did not require KRK to have a biological relationship to Roee for him to be her parent.