Editor’s note: This blog post is the second part of a two-part series. Read part one.
We return to our case from the previous post: a same-sex couple are the fathers of two boys, both siblings born from the same womb four minutes apart, only one of which is eligible for American citizenship. How can this be possible? The answer underscores many of the challenges we highlighted last week.
Birthright citizenship is generally passed to a child in one of two ways. Either the child is born in the United States or its territories, or the child’s parent is a U.S. citizen meeting certain requirements. For children born outside the United States to a married couple, only one of whom is a U.S. citizen, there is a presumption under the Immigration and Naturalization Act (INA) that the child is the natural born child of both married partners.
For children born out of wedlock, however, there is a different standard. Generally, a DNA test is required to prove the child is actually the child of a citizen. This additional step is not required of married couples.
So why was it required here? This couple is legally married, so why doesn’t the presumption apply to them? This is the primary claim of their lawsuit, which is currently pending against the U.S. government.
On the surface, it’s easy to claim that if the non-citizen was a biological parent, then it’s not biologically possible for the citizen parent to also be a biological parent since they are both males. The presumption of paternity doesn’t seem to apply, since it’s not just possible that the citizen is not the father – it’s a certainty.
However, consider an alternate scenario: A heterosexual married couple includes the wife (a U.S. citizen) and the husband (a non-citizen). The couple uses donor egg and sperm to conceive, and the wife carries and gives birth to the child abroad. Even if the use of donor gametes is declared, so it’s clear that neither of them are genetic parents, does the presumption of parentage still apply, allowing the child to be a U.S. citizen?
If it does, then this calls into question why a same-sex couple is treated differently. In both cases, the child was born to a couple, both of whom are the intended, legal parents. When is genetics relevant, and when can it be disregarded?
Cases like these confront the courts and the media more often than they should, causing confusion and concern for prospective parents and distress for those caught in the legal quagmire. What should legally define a parent? How should we as a society recognize the various familial arrangements arising out of the proliferation of assisted reproductive technologies? And, most importantly, how can the best interests of children be protected by our patchwork of laws struggling to keep pace with technology?