Jus Sanguinis or Just Plain Discrimination? Rejecting a Biological Requirement for Birthright Citizenship of Children Born Abroad to Same-sex Couples via Assisted Reproductive Technology

• Publication year: 2022

Jus Sanguinis or Just Plain Discrimination? Rejecting a Biological Requirement for Birthright Citizenship of Children Born Abroad to Same-Sex Couples Via Assisted Reproductive Technology

Thomas Evans
University of Georgia School of Law

Jus Sanguinis or Just Plain Discrimination? Rejecting a Biological Requirement for Birthright Citizenship of Children Born Abroad to Same-Sex Couples Via Assisted Reproductive Technology

Cover Page Footnote
J.D. Candidate, 2022, University of Georgia School of Law; B.S., 2019, Georgia Institute of Technology. I would like to thank Dean Jason A. Cade for his mentorship on this Note and for his tireless advocacy for immigrant rights.

JUS SANGUINIS OR JUST PLAIN DISCRIMINATION? REJECTING A BIOLOGICAL REQUIREMENT FOR BIRTHRIGHT CITIZENSHIP OF CHILDREN BORN ABROAD TO SAME-SEX COUPLES VIA

ASSISTED REPRODUCTIVE TECHNOLOGY

Thomas Andres Sanchez Evans^*

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Until recently, the State Department had a policy deeming children born abroad to married same-sex couples to be children born out of wedlock. Then, applying the statute for children born out of wedlock with more rigorous requirements, the State Department only allowed citizenship to pass through a biological relationship between the biological parent and the child.
Although the State Department updated this policy in May 2021 to allow for birthright citizenship of children born abroad to married same-sex couples, the new policy does not go far enough. This Note argues that Congress should amend the Immigration and Nationality Act to allow passage of birthright citizenship regardless of marital status based on intentional parentage rather than biology. This Note also argues that Congress should eliminate Section 309 of the Immigration and Nationality Act to eradicate distinctions between births in and out of wedlock in order to eliminate discriminatory treatment based on sexual orientation, gender identity, and marital status.

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Table of Contents

I. Introduction..................................................................1248

II. Background on Assisted Reproductive Technology .............................................................................................1250

A. financial burden of art....................................1251
B. reproductive options for same-sex couples .. 1252

III. Statutory Framework for Determining Citizenship of Children Born Abroad.........................................1255

A. the immigration and nationality act: sections 301 and 309.......................................................... 1255
B. district court applications of sections 301 and 309 to married same-sex parents.....................1259

1. Dvash-Banks v. Pompeo.................................1259
2. Mize v. Pompeo...............................................1261

IV. Public Policy Concerns Regarding Birthright Citizenship of Children Born Abroad to Same-Sex Couples via ART.........................................................1263

A. recognizing the legitimacy of families with same-sex parents................................................1263

1. Recognizing the Legitimacy of Same-Sex Couples ........................................................................1263
2. Preventing Feelings of Stigma for Children of Same-Sex Parents...........................................1266
3. Maintaining Family Unity.............................1267

B. conserving judicial resources........................1268
C. de facto wealth test on the families of same-sex couples................................................................1268

V. Proposal for a New Statutory Scheme....................1270

A. amending section 301 to allow for birthright

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Citizenship through intentional parentage . 1271
B. addressing relevant state interests.............1273

1. Fraudulent Marriages....................................1273
2. Birth Certificate Fraud...................................1274

C. eliminating section 309..................................... 1275

1. Reliance on a Heteronormative View of Family Structure...........................................................1276
2. Reliance on Antiquated Stereotypes of Unmarried Parents ............................................................ 1277

VI. Conclusion...................................................................1278

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I. Introduction

The last decade has seen a dramatic improvement in the rights of the LGBTQ+ community in the United States.¹ Although the U.S. Supreme Court officially recognized same-sex marriage in 2015,² issues related to same-sex marriages have persisted in the American legal system, particularly as they relate to immigration and nationality law. One issue concerns children born abroad to same-sex couples via assisted reproductive technology (ART).³

Until recently, the U.S. Department of State had a policy that considered children born abroad to married same-sex couples to be born out of wedlock based on Congress's statutory scheme for this field.⁴ The State Department made these citizenship decisions by requiring a biological relationship to both parents, an impossible requirement for children born to same-sex couples to satisfy.⁵ After this determination, the State Department would apply the statute

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for children born "out of wedlock."⁶ Consequently, citizenship could only pass from the biological parent, even if that parent's spouse is a United States citizen who would otherwise satisfy the statutory requirements for their children to receive United States citizenship.⁷ On May 18, 2021, the State Department amended its policy to allow for citizenship to pass through either parent of a child born abroad using ART, regardless of a biological relationship, thus recognizing "the realities of modern families and advances in ART."⁸

Based on this change, this Note first argues that future administrations, including those less friendly to LGBTQ+ and immigrant rights, should continue to follow this updated administrative policy recognizing that children born to married couples via ART are children born in wedlock. Second, this Note argues that the new interpretation does not go far enough; Congress should recognize modern families' needs by eliminating distinctions between children born in or out of wedlock and instead only require intentional parenting based on parents' names on a birth certificate.

Part II provides background information on ART. Part III examines the statutory framework involved in the State Department's policies, as analyzed in relevant district court cases. Part IV discusses public policy reasons for not returning to the pre-May 2021 policy. Finally, Part V argues for amending the statute to convey birthright citizenship to children born abroad based on intentional parenting instead of a biological requirement and advocates for eliminating any distinctions in citizenship determinations based on biology and birth in wedlock.

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II. Background on Assisted Reproductive Technology

According to the Centers for Disease Control and Prevention, "ART includes all fertility treatments in which either eggs or embryos are handled."⁹ The most common form of ART is in vitro fertilization (IVF), which involves extracting eggs, fertilizing the eggs in the laboratory, and then transferring the resulting embryos into the uterus through the cervix.¹⁰ Another common form of ART is artificial insemination, in which sperm is introduced via injection to the cervix.¹¹

Fertility clinic data indicate that the use of ART is becoming more common: 2.1% of all births in the United States result from ART.¹² Although there are no published figures on the number of children born to same-sex couples via ART in the United States or globally, one author has suggested that the increase in ART usage in the United States is in part due to increased use among same-sex couples.¹³ This increase in ART use raises questions about the financial costs of starting a family, especially given same-sex couples' limited options for having children.

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A. FINANCIAL BURDEN OF ART

ART is a costly procedure that is often only available to wealthy couples, unless covered by an insurance plan.¹⁴ In states that require insurance mandates to cover the costs of IVF, there are higher rates of ART usage and improvements in IVF procedures.¹⁵ Despite the benefits of offering insurance coverage for ART, as of January 2022, only seventeen states have enacted laws that require insurers to cover, or offer at least some coverage, for fertility treatments and diagnoses.¹⁶ As a result, this "lack of coverage has forced many couples to go into debt or mortgage their homes in order to access ART."¹⁷ Due to the 25-30% live birth success rate of IVF, several rounds of IVF are often required to result in a viable pregnancy, which could lead to out-of-pocket costs reaching hundreds of thousands of dollars.¹⁸ Couples may take other drastic measures to afford having a child, including "borrowing money from friends and family, pulling money from savings and retirement accounts, pawning or selling property, sharing prescription drugs, 'donating' extra fertilized eggs to obtain a discount on fertility services, participating in clinical trials, joining the military, draining flexible medical-spending accounts, taking additional

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jobs," and moving to another state or overseas to a place with insurance coverage of ART.¹⁹

In comparison to IVF cost burdens in the United States, virtually all European countries offer some form of coverage for ART.²⁰ Denmark, France, Hungary, Russia, Slovenia, and Spain offer national health plans that provide complete coverage for ART procedures.²¹ Israel also provides complete coverage, and Portugal, Turkey, and Sweden offer some coverage.²² Most countries in the Global South, however, offer no coverage, "making ART inaccessible to those who might need it most."²³ Due to insurance coverage restrictions or...