When Andrew and Elad Dvash-Banks won their lawsuit against the State Department in February, they thought that the yearlong legal battle over their Canadian-born son’s American citizenship was finally over.
“This is over, this is behind us,” Andrew Dvash-Banks, a U.S. citizen who was born in California, recalled thinking when U.S. District Judge John F. Walter ruled that the State Department’s imposition of a biological requirement for their son’s birthright citizenship was based on a “strained interpretation” of existing immigration law.
But the department’s decision earlier this month to appeal the federal judge’s ruling has drawn national attention to a little-known policy that effectively de-recognizes the marriages of same-sex couples who have children abroad—and has once again thrown Andrew, Elad, and their twin sons into legal limbo.
“How long are we going to have to live our lives without being 100 percent sure that my government recognizes my family as one unit, and is protecting my son?” Andrew asked rhetorically. “It’s hard enough to raise 2-1/2-year-old twin boys… and then to have this additional worry and burden, it’s just very stressful.”
The policy in question is rooted in the State Department’s interpretation of the Immigration and Nationality Act (INA), a federal law that stipulates that any child born abroad to a married U.S. citizen parent is granted birthright American citizenship. Although the law, which was passed in 1952, makes no reference to biology or assisted reproductive technology, the State Department “interprets the INA to mean that a child born abroad must be biologically related to a U.S. citizen parent,” according to the department’s website.
Children born via gestational surrogacy or other forms of assisted reproductive technology (ART)—children like Aiden and Ethan, who were born with the help of an anonymous egg donor and a gestational surrogate—are considered by the State Department to be born “out of wedlock,” even if their parents are legally married, a status that erects higher hurdles for citizenship, including DNA tests to prove a biological relationship to a U.S. citizen parent with a sufficiently lengthy record of residency in the country.
It was that policy that led to Andrew and Elad’s nightmare scenario: standing in the U.S. consulate in Toronto in January 2017, being told by a U.S. vice consul that without evidence of a biological relationship with Andrew, neither one of the twins would qualify for U.S. citizenship.
“To drop this bombshell that you’re going to require a DNA test because you’re only going going to grant citizenship to the child that is genetically connected to me,” Andrew recalled, was “very callous—cold, robotic, and hurtful.” Eventually, he said, he was “bawling, crying my eyes out” in the consulate as his children’s citizenship was thrown into question.
“This policy targets same-sex families, because, in most times, it’s clear that they had to use assisted reproductive technology, and they stick out,” Elad said.
Speaking to The Daily Beast in the offices of Immigration Equality, the nonprofit that advocates for LGBT people in the immigration system and is representing the Dvash-Bankses in court, Andrew and his husband Elad characterized the policy as rooted in the same state-sanctioned discrimination that forced them to move to Canada in the first place.
“Because of DOMA, binational couples got to know each other abroad and then couldn’t sponsor the foreigner to come to the U.S.,” said Elad, an Israeli national, referring to the Defense of Marriage Act, a federal law that forbade the U.S. government from recognizing same-sex marriages. “We were discriminated against when we wanted to live here, and we are continuing to be discriminated against today.”
The law, which barred U.S. citizens from sponsoring visas for foreign-born same-sex spouses, was the impetus behind Andrew and Elad’s decision to move to Canada shortly before getting married in 2010—kickstarting a cycle of government exclusion that continues nearly a decade later.
If DOMA never existed and they had been able to move to California, Andrew said, “then we would have been living in L.A. instead of Toronto, enjoying the sunshine, and we probably would have found a surrogate there.”
“We found ourselves in this situation because of the discrimination of DOMA.”
The government’s discrimination against same-sex couples, Andrew and Elad said, far outlasted DOMA itself, which was struck down by the Supreme Court in 2013.
“I won’t forget that moment in the consulate that [the vice consul] told us, ‘well, do you know who is genetically related to which one of you?’ And we’re like, what are you talking about?” Elad said. “You have our marriage license in front of you—you have the kids’ birth certificate with our names on them, why are you even asking us this? And then I got it—she’s only asking us that because we’re a same-sex couple.”
For Andrew and Elad, that suspicion was confirmed when they asked whether the same questions would have been raised if they had been an opposite-sex couple.
“‘What if Elad is the female foreign spouse and I’m the American male spouse and I’m infertile and we had to get a sperm donor who wasn’t American?’” Andrew posed to the vice consul at the time. “‘Our names are on the birth certificate—would you have asked?’”
“Her response was, ‘it’s at my discretion who I decide to require a DNA test from.’”
The fathers took their case to court, arguing successfully that the policy was implemented without any textual basis in the INA, and in contradiction to court precedents that have found using DNA testing to confer citizenship is a violation of federal law.
But the State Department’s appeal—and a flurry of similar cases, with more potentially on the way—means that the case will continue to drag on before the Ninth Circuit hears the case.
“With oral arguments, it’s possible that those won’t happen until a year from now,” said Kristen Thompson, Immigration Equality’s communications director.
As mop-topped toddlers Aiden and Ethan Dvash-Banks—the former a U.S. passport-holder since birth, the later only by the grace of a federal court ruling—doodled with markers and scratch paper, Andrew and Elad told The Daily Beast that they are confident that the Ninth Circuit Court of Appeals will uphold the initial ruling that recognized Ethan’s birthright citizenship. But the time and energy required to see the case through, both fathers noted, isn’t exactly easy to come by with twin toddlers in the house.
“When people hear about our story, they think that that’s all we deal with every single day, and it’s like, there’s so much more to raising 2-1/2-year-old twins!” said Elad, whose sole goal in pursuing the suit is for the U.S. government to “let us live our boring family life.”
“Our children are our life—as you can see, all we do is color and draw,” Andrew added, as Ethan methodically applied marker caps to each of his digits. “This situation is just so heavy on us, because as a parent, my first responsibility is to protect my child. It’s just this extra burden.”