Important Issue on the Horizon for Same-Sex Couples: Your Foreign-Born Children May be Denied Citizenship

Like many heterosexual couples, many same-sex couples living in America today are made up of one partner who is a U.S. citizen and a partner who is a citizen of another country.

For heterosexual couples living abroad, any child born of the partnership is automatically granted U.S. citizenship because one of the biological parents is a U.S. citizen. As same-sex couples are coming to learn though, this is not the case with children born abroad to their non-U.S. citizen partners.

While children born to a U.S. citizen living abroad are usually granted citizenship, this is not necessarily the case for same-sex couples who must use assisted reproductive technology and donor eggs or sperm. This is because the U.S. State Department has traditionally followed a policy to only grant citizenship to children who are genetically related to the U.S. citizen parent. This has become a significant problem for same-sex couples whose use of donor eggs or sperm means that only one partner is biologically related to the child.

The result of this policy is that children born of a same-sex union outside of the U.S. are being granted U.S. citizenship ONLY if they are genetically related to the U.S. citizen partner.

Meanwhile, children born to the non-citizen partner (and not genetically related to the U.S. citizen) are being denied U.S. citizenship despite the otherwise valid marriage of their parents.

Recently, two sets of same-sex couples consisting of a citizen and non-citizen sued the United States because the children born to the non-citizen were denied U.S. citizenship. In both cases, the children born outside of the U.S., and only the child genetically related to the citizen partner was granted citizenship. The other child was denied citizenship on the grounds that there was no blood relationship between the child and the citizen.  

One current option available to same-sex couples to get around this requirement is offered under the the Immigration and Nationality Act. Under the INA, a child born in another country can obtain U.S. citizenship through their U.S. citizen step-parent as long as the adult has lived in the U.S. for at least five years. Not surprisingly, this has not been an attractive option for many same-sex couples as it would make one parent the “step-parent” when in reality, they are the child’s parent as much as the citizen parent.

Since same sex marriages were not federally recognized in the U.S. until recently, many same-sex couples left the United States years ago to live in countries that recognized their marriage. Yet, despite the 2013 ruling of the U.S. Supreme Court legalizing same-sex marriage, the State Department is still essentially not affording same-sex couples the same rights enjoyed by heterosexual couples. By focusing on biological ties instead of the familial ties created by marriage the State Department continues to deny U.S. Citizenship to children born to same-sex couples.

If you are facing this issue or have questions about citizenship in general, contact the attorneys at Rotella & Hernandez. We are a firm of experienced, compassionate attorneys, and we are ready to fight to keep your family together. For immigration and family law matters, call us 786-571-8472.

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