Ordinarily, there would be no question about it. When one of the spouses in a married couple is a U.S. citizen, their legal children are birthright citizens. The U.S. government, however, has denied that the legal child of a U.S. citizen is a birthright citizen, essentially because the parents are a lesbian couple.
Section 301 of the Immigration and Nationality Act defines who is a birthright citizen of the U.S. Part (g) describes this situation: “a person born … of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years.” It goes on to describe services to the U.S. that can be included in the physical presence calculation.
This case involves a couple who were married in England. One spouse is a U.S. citizen who met the continuous presence requirement. The other spouse is an Italian national. Each had a child using her own egg and a sperm donor.
When they applied for a certificate of U.S. citizenship for the child born to the Italian mother, however, they were turned down. The State Department, citing an internal agency policy, applied Section 309 of the INA instead of Section 301. Section 309 applies only to children of unmarried parents.
Same-sex marriage is legally equivalent to opposite-sex marriage in the United States. The U.S. Supreme Court ruled that in Obergefell v. Hodges and United States v. Windsor. The Supreme Court determined, on constitutional grounds, that same-sex marriage is a fundamental right and is legally equivalent to heterosexual marriage. The State Department cannot overrule the Supreme Court with an internal agency policy.
Nevertheless, the State Department applied the section on unmarried parents when denying citizenship to one of the couple’s children. It argues that children born using assistive technology must either have a biological or gestational connection to the U.S. citizen parent in order to be birthright citizens. Its website says that this is required under both Section 301 and Section 309.
Neither Section 301, which applies to children of married parents, nor Section 309, which covers out-of-wedlock births, contains any mention of the biological or gestational requirement mentioned on the State Department’s website.
The family has filed a lawsuit alleging violations of the due process and equal protection clauses of the U.S. Constitution, along with violations of the Administrative Procedures Act, which prohibits agency actions that are arbitrary or capricious.