Citizenship Denied: The Cross-section of ART and Immigration Law
Written By: Deneen Azaula
Modern surrogacy techniques raise interesting issues about the citizenship of the child. In this piece, the author explores one such example and the litigation surrounding the Dvash-Banks family’s newborn child.
In 2011, Andrew and Elad moved to Canada to get married because same-sex marriage were illegal in California. When they were ready to have a child, they couple sought the services of a fertility clinic to connect with a gestational surrogate and an anonymous egg donor. Through a process called in vitro fertilization (IVF), eggs were extracted from the donor and fertilized in a laboratory with Andrew and Elad’s sperm. The resulting embryos were then implanted into the uterus of the surrogate. The surrogate successfully gave birth to twin brothers four minutes apart with one brother being genetically related to Andrew and the other brother to Elad. Canada listed both Andrew and Elad Dvash-Banks as parents on the twins’ birth certificate. 
Andrew and Elad decided it was time to come back to California after the Obergefell v. Hodges legalized same-sex marriages in all states. Elad is an Israeli citizen, so the fathers believed that the twins would inherit U.S. citizenship through Andrew who was born and raised in California. However, the immigration official at the border required that the children take a blood test in order to prove a biological relationship with Andrew to gain birthright citizenship.
The test determined that only the brother genetically related to Andrew could inherit U.S. citizenship. The other brother genetically related to Elad could not gain birthright citizenship and currently lives in California on an expired tourist visa. The Dvash-Banks family is suing the State Department for refusing to recognize the birthright citizenship of children of same-sex couples.
In FY2016, 70,666 children gained their U.S. citizenship at birth by being born abroad to U.S. citizens. Many future parents planning to use assisted reproductive technology (ART) to have children while abroad are not aware that barriers exist that may not make automatic citizenship transmission possible.
The United States establishes citizenship at birth in one of two ways—either by (1) being born in the U.S. and its territories or by (2) being born abroad as the child of at least one U.S. citizen. The second method allowed politicians John McCain and Ted Cruz, born in Panama and Canada respectively, to claim the birthright citizenship necessary to run for president.
For a child born abroad to unmarried parents, the Immigration Nationality Act (INA) requires a blood relationship between the child and the parent transmitting U.S. citizenship. On the other hand, the law is silent on such a requirement for children born abroad to married parents. The State Department interprets the INA to require a blood relationship to all children born abroad regardless of whether the parents are married or unmarried. The Dvash-Banks suit mainly argues that the State Department wrongfully applied the blood relationship requirement because they are married.
When the State Department adopted the biological connection requirement, IVF procedures and sperm and egg banks did not yet exist. Furthermore, same-sex marriages were outlawed, which is important considering that same-sex couples like Andrew and Elad must use ART in order to have children. To its credit, the U.S. State Department expanded its ART immigration policy to allow citizenship transmission to newborns whose mothers they have no genetic tie with in situations where the mother used an egg donor but carried and delivered the child. Even with this addition, the purpose of the genetic requirement continues to lose relevance in the face of emerging ART.
For example, in mitochondrial egg donation, the child gains DNA from two eggs and one sperm, resulting in a child with three genetic parents. Also, the possibility of future ART, such as Clustered Regularly Interspaced Short Palindromic Repeats or CRISPR, cloning, and artificial wombs further threatens the current immigration scheme of requiring a blood or gestational relationship.
Furthermore, expansion would protect such children from potential harms such as the possibility of becoming stateless and give these children the privileges of citizenship such as the ability to travel freely or run for president.
 Ellen Trachman, That Awkward Moment When Your Twin Brother Is A U.S. Citizen At Birth, But You’re Not, Above the Law (Sep. 2017), https://abovethelaw.com/tag/elad-dvash-banks/ [hereinafter “Dvash-Banks”].
 Id; See also Obergefell v. Hodges, 135 S. Ct. 2584, 2588 (2015)
 Dvash-Banks, supra note 1
 Bureau of Consular Affairs, U.S. Dep’t of State, CA by the Numbers (May 2017), https://travel.state.gov/content/dam/travel/CA_By_the_Numbers.pdf.
 Kristine S. Knaplund, Baby Without A Country: Determining Citizenship for Assisted Reproduction Children Born Overseas, 91 Denv. U. L. Rev. 335, 336 (2014).
 Scott Titshaw, Sorry Ma’am, Your Baby Is an Alien: Outdated Immigration Rules and Assisted Reproductive Technology, 12 Fla. Coastal L. Rev. 47, 78 (2010) (hereinafter “Sorry Ma’am”)
 Id; see also Kerry Abrams & R. Kent Piacenti, Immigration’s Family Values, 100 Va. L. Rev. 629, 672–73 (2014).
 Kristine S. Knaplund, Baby Without A Country: Determining Citizenship for Assisted Reproduction Children Born Overseas, 91 Denv. U. L. Rev. at 365 (2014).
 U.S. Dep’t of State, Assisted Reproductive Technology (ART) and Surrogacy Abroad, Travel.State.Gov, https://travel.state.gov/content/travel/en/legal/travel-legal-considerations/us-citizenship/Assisted-Reproductive-Technology-ART-Surrogacy-Abroad.html (last visited Dec. 10, 2017).(hereinafter “ART and Surrogacy Abroad”)
 Kristine S. Knaplund, Baby Without A Country: Determining Citizenship for Assisted Reproduction Children Born Overseas, 91 Denv. U. L. Rev. at 360 (2014).
 Maria Sacchetti, In lawsuits, same-sex couples say U.S. wrongly denied their children citizenship, Wash. Post (January 22, 2017), https https://www.washingtonpost.com/local/immigration/in-lawsuits-same-sex-couples-say-us-wrongly-denied-their-children-citizenship/2018/01/22/1c83c98a-fd34-11e7-8f66-2df0b94bb98a_story.html?utm_term=.c7f56a9120ae