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Foreign Bodies

ISSUE:  Winter 2018
As reproductive technology outpaces US immigration law, families struggle to stay together.

“The exile is a ball hurled high into the air. He hangs there, frozen in time, translated into a photograph; denied motion, suspended impossibly above his native earth, he awaits the inevitable moment at which the photograph must begin to move, and the earth reclaim its own.”

— Salman Rushdie

It was on their third date, over dinner at a restaurant along the breezy metropolitan expanse of Rothschild Boulevard in Tel Aviv, that the question of family first bubbled up for Andrew and Elad Dvash-Banks. The year was 2008 and Andrew was in Israel on a student visa, working toward his master’s degree in Middle Eastern studies. He was set to fly back home to Los Angeles for two weeks to celebrate his mother’s upcoming wedding—“not her second or third,” Andrew would later say, jokingly. For Elad, who came from a traditional Israeli family, this came as a surprise. “He had never really heard of somebody our age going to a parent’s wedding,” Andrew said. At one point, Andrew began drawing his sprawling family tree on the back of a napkin, hoping to “explain who’s who.” Studying the tree, Elad asked: “What kind of family do you see for yourself?” 

It became clear as they talked that both men saw family—and children in particular—as an elemental part of their futures, a desire they were relieved to have in common. After a few months of dating, Andrew and Elad fell in love and moved in together in Tel Aviv. They finished school, traveled, built careers. The subject of kids dropped behind the scrim of their busy lives. The topic came up now and then, sometimes as a casual hypothetical about naming a future boy or girl, but it wasn’t until Andrew and Elad were married in 2011 that they began seriously planning to have a family. “It really was a process,” Andrew told me. “Deciding to have a family, for a same-sex couple, is just not something that you can do overnight and execute right away.”

Choosing a place to call home and raise that family was its own challenge. At the time, Andrew could not marry Elad in the United States, or even sponsor him for a green card, because the Defense of Marriage Act—known as DOMA, and which defined marriage as the union of one man and one woman—was still in place. Canada, however, had legalized same-sex marriage in 2005. Fortuitously, Andrew, who was born in California, also held dual Canadian citizenship by virtue of his parents’ Canadian origins. “We decided to give Toronto a shot basically by process of elimination,” Andrew said. “That was one of a few places in the world where gay marriage was legal and we could actually live our lives as equal citizens—and I could sponsor Elad to immigrate.” 

Within a year of getting married, Elad began making calls to surrogacy agencies and lawyers just to try to understand the labyrinthine process of creating a family. They forecast for a lot: the emotional vicissitudes of in vitro fertilization, the financial burden of assisted-reproductive technology, the uncertainty of success. “It was so tumultuous during that period,” Andrew said. “You worry: ‘Am I going to be able to afford this?’ and ‘Oh my god, another $5,000 bill!’ and ‘Are the embryos going to take once we implant them?’ and ‘How many cycles could this take us to complete our family?’” 

In 2016, they decided to take the next step. With the help of a surrogate and an anonymous egg donor, they fertilized two embryos to increase the chances of implantation—one egg with sperm from Andrew, the other with sperm from Elad. To everyone’s surprise, it required only one cycle for both eggs to take in the surrogate. In September 2016, Andrew and Elad became the parents of twins, their boys, Ethan and Aiden, born just moments apart. They were exultant.

Not long after the boys were born—and with DOMA having been repealed in the United States in 2013—Andrew and Elad began planning a move to California. They took Ethan and Aiden to the US Consulate’s Office in Toronto to obtain their US passports—bringing along birth certificates, their marriage certificate, declarations of parentage, and payment for the application fees. From behind the security glass, the consular officer looked at Andrew and Elad and asked: “Do you know who these kids are genetically related to?” Elad began countering with his own questions: “What if one child is from each of us? Would that make any difference?” The consular officer referenced the law and said that yes, it would. 

What followed was a granular questioning—about the boys’ conception, about who the egg donor was, about which spouse provided sperm for which child. They were told that without a genetic link to a US-citizen parent, neither child would qualify for US citizenship at birth. There at the window, Andrew began to break down as others in the waiting room watched in awkward silence. By the time they left the consulate, Andrew and Elad both felt humiliated, but they agreed to genetic testing. It was, they thought, just one last hurdle among the many they’d already faced.

After submitting the results of their DNA tests, they received two letters from the State Department, one granting Aiden citizenship, the other stating that Ethan, who had been conceived with Elad’s genetic material, had been denied. The decision was based on an interpretation of the Immigration and Nationality Act (INA), which, in the State Department’s reading, asserts that a “blood relationship” is required between a child and a US-citizen parent in order to obtain a passport. Ethan’s letter, which was addressed to Andrew, stated that the boy’s claim to US citizenship had not been established, “as you are not his biological father.”

A few months after Ethan’s citizenship had been denied, the Dvash-Banks family landed in Los Angeles. Andrew and Aiden carried their US passports; Elad carried his Israeli passport and a green card. Ethan passed through US customs at LAX with a Canadian passport and a six-month tourist visa. What they would do next was anyone’s guess, but at the very least they were determined to live the life they had planned as an American family for as long as they could.

“Of all the hundreds and hundreds of things I worried about, this one never crossed my mind,” Andrew said of the ordeal. “How could it? They’re both my children. I’m on both birth certificates, Elad is on both birth certificates—exclusively. No one else appears on the birth certificates. I am the legal father. I am the father of both children. It never would have crossed my mind in a million years.”

The term “naturalization” has both biological and legal connotations. Biologically, it describes a process by which a foreign species becomes “established as if native.” Legally, it names the process by which an immigrant becomes a citizen of the United States of America. Read together, the lexis of biomedicine, though distinct, overlaps with the legal nomenclature of citizenship and immigration. Embedded within this nomenclature are many of today’s definitional conflicts—about who is native and who is not, about who belongs and who doesn’t. In the case of Ethan and Aiden, biology is more literally encoded in the debate.

Prior to the repeal of DOMA, marital status was essentially used as a rough proxy for a genetic link between parents and their kids when trying to determine citizenship status for children born abroad. In the context of DOMA, all marriages were heterosexual marriages, and a child born abroad to a married man and woman was generally presumed to possess genes from both members of that union—to be, as the US Foreign Affairs Manual states, “the issue of that marriage.” 

Notably, the State Department did not apply this genetic presumption when a married couple’s child was born abroad using assisted-reproductive technology. Breakthroughs in such technology, like in vitro fertilization and surrogacy, made it possible for a woman who delivers a baby not to share any genetic material with that baby. These advances redefined the parameters of family and opened a gap between a heterosexual couple’s marital status and the usual presumptions about citizenship via genomic inheritance. For these new kinds of families, the State Department required proof of a genetic link between heterosexual married parents and their children for the purposes of granting citizenship.

With the repeal of DOMA, the State Department faced another novel reality: the convergence of assisted-reproductive technology with a legal class of marriage never before recognized by the US government. While the government previously required straight parents using assisted-reproductive technology and unwed fathers to show evidence of biological relationships to their children, all married gay parents are now effectively being required to submit genetic tests to prove what the State Department calls “blood relationships” to their legally recognized children. 

In 2018, with the help of Immigration Equality, a nonprofit legal and advocacy organization that specializes in cases involving LGBTQ immigration, Andrew sued the US State Department, alleging that its decision to deny coequal citizenship status to both his legally recognized children amounted to a violation of the US Constitution and the INA. Lawyers for Immigration Equality argue that the application of this biological threshold for citizenship is inherently discriminatory because it creates a disproportionate burden on all married same-sex parents, who must use donor eggs, donor sperm, or surrogates to have children. By definition, these couples cannot pass a litmus test that proves a genetic link between both parents and their legally recognized children—a test that the majority of married heterosexual couples automatically pass (or are presumed to pass) because they don’t need to use assisted-reproductive technology. 

“When the Supreme Court struck down the Defense of Marriage Act,” said Aaron C. Morris, Executive Director of Immigration Equality and one of the attorneys handling the Dvash-Banks case, “it not only extended the freedom to marry to all couples willing to make the commitment, but it also sought to ensure that the children of same-sex married couples would be conferred the same dignity and protections as all other children. What the State Department is doing in this case is completely at odds with that decision. It is punishing the children of same-sex couples for having gay parents.” 

In their complaint, Andrew and Elad’s lawyers contend that the State Department failed to apply the correct part of the INA to Ethan and Aiden. Act 309 of the INA, which requires “a blood relationship” between a parent and a child to transmit citizenship, applies only to “children born out of wedlock.” According to the lawsuit, since Ethan and Aiden were born to married parents, the correct statute to apply is Act 301 of the INA, which makes no reference to biological relationships and entitles a person born abroad to citizenship at birth if at least one of that person’s married parents is a US citizen—criteria which, they insist, describe Ethan perfectly. 

Immigration Equality also argues that the sections of the INA concerned with citizenship (as opposed to immigration), do not include specific definitions of the terms “parent,” “person,” “mother,” “father,” and “out of wedlock” that are being used by the State Department to impose a genetic threshold for parentage on married same-sex couples like Andrew and Elad. This last intriguing argument essentially amounts to a critique of the State Department’s reading of the statutory language of the INA. Tacitly, the complaint asks what we really mean by parent or mother or father. And more profoundly: What, precisely, is family? And this is where the precedent-setting power of the Dvash-Banks case stems from. Until recently, these definitions were taken for granted, their interpretations rooted in age-old understandings of hereditary bonds. With advances in assisted-reproductive technology, however, the supposedly reliable assumptions don’t always hold. The outcome of the Dvash-Banks family’s case will hinge, in part, on whether the courts acknowledge the biotechnological and social forces that have transfigured traditional definitions of family.

The decision courts arrive at will almost certainly impact many other families. According to research conducted by the Williams Institute at UCLA School of Law, there were, based on the last US Census, more than 28,000 binational same-sex couples living in the country in 2010, in which one partner was a US citizen and one was not. Like Andrew and Elad, many of these couples were unable to get married in the United States because of DOMA and, having married and started families abroad, are now seeking to finally realize the opportunity to raise those families back home. 

At the heart of the Dvash-Banks case is a set of guidelines—a kind of scriptura—that codifies the State Department’s beliefs and practices: the Foreign Affairs Manual. The manual, which is used to interpret and apply the statutory language of the INA, states: “The laws on acquisition of U.S. citizenship through a parent have always contemplated the existence of a blood relationship between the child and the parent(s) through whom citizenship is claimed.”

Andrew and Elad never imagined the legal dilemma posed by the manual—understandably, they’d never even known of its existence. But now a once-inconceivable reality confronts them daily. “We thought it’s over with,” Elad said. “We really thought with the 2015 and 2016 decisions in the Supreme Court [in favor of marriage equality for same-sex couples], that it’s almost over, that we’re there. Now, we’re just rethinking this.” Ethan resides in the United States on a tourist visa—“an expired tourist visa,” Andrew painfully points out—and has had to submit a green-card application to US Citizenship and Immigration Services as backup against possible deportation in case the family’s lawsuit fails. And though Ethan does have a Canadian passport, the family cannot leave the United States without the risk of their two-year-old son being denied reentry. 

Having sold their home in Toronto, they told me there is no Plan B. They live and work in Los Angeles—Elad at a synagogue, Andrew as a travel manager. “We are in California permanently,” Elad declared, seemingly as much for himself as for me, “house hunting” to move to a bigger place with a backyard. He told me they want to get out of their two-bedroom apartment, to own their own home, maybe even find one with enough space for a slide for the kids. But a few moments later, the worry flooded back in: “There’s always the ‘What if?’ scenario.” In these moments, all the progress made for gay rights feels more tenuous: “We really thought—maybe naïvely—that we were equal,” Andrew said.

As the State Department’s primary guide to determining Ethan’s status, the Foreign Affairs Manual defines two legal principles by which an individual may obtain birthright citizenship to the United States. The first is jus soli (“right of the soil”), which is defined in the manual as “the law of the soil, a rule of common law under which the place of a person’s birth determines citizenship.” In the United States, this principle was ratified in the form of the Fourteenth Amendment to the US Constitution, which states: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” Jus soli citizenship has roots in a creedal notion of citizenship—the view that citizens of a country are defined by allegiance to an idea (allegiance that transcends blood, if not soil). Unqualified jus soli citizenship is recognized by a relatively small group of nation states that does not currently include a single European country.

The second and far more common principle of citizenship is jus sanguinis (“right of blood”), which the manual defines as “the law of the bloodline—a concept of Roman or civil law under which a person’s citizenship is determined by the citizenship of one or both parents.” This concept, the manual says, is frequently called “citizenship by descent” or “derivative citizenship.” This “law of the bloodline” can be traced back to medieval scholars’ application of sixth-century Roman law, which was codified under Emperor Justinian I. That canon, the Corpus Juris Civilis, sometimes referred to as the Code of Justinian, or the Institutes of Justinian, formed the foundation of the legal systems of modern Western countries, including British and US common law.

In fact, in the case of Dred Scott v. Sandford, Justice Peter Daniel of the US Supreme Court cited the Institutes of Justinian (and the principle of jus sanguinis embodied therein) in his concurring opinion supporting the majority’s ruling—written by Chief Justice Roger B. Taney—that a “free negro of the African race, whose ancestors were brought to this country and sold as slaves, is not a ‘citizen’ within the meaning of the Constitution of the United States.” Daniel, quoting Edward Gibbon’s The History of the Decline and Fall of the Roman Empire, wrote in his concurrence that “servile birth…was decided by the condition of the mother.” Then quoting the Institutes of Justinian, he wrote: “[s]laves are born such,” hoping (along with six of his fellow justices) to draw an indelible bloodline severing blacks from the body politic.

In the aftermath of this tainted decision, Abraham Lincoln won the presidency and the nation descended into civil war. If formal military conflict abated by the end of the war in 1865, combat was carried into the legislative theater, with former Confederate states passing the “Black Codes” that systematically restricted the legal and political rights of the formerly enslaved. Congress, realizing the growing chasm between the promise of emancipation and the reality of postwar life, ratified the Fourteenth Amendment to the US Constitution in 1868, thus instituting the place of jus soli in American jurisprudence.

Construction by Stephen Doyle

There is a long history in America of state-sanctioned action against individual civic rights by the use and misuse of “blood relationships,” a history often underwritten by institutional medicine and cosigned by revanchist legislators. Take, for instance, the case of Walter Ashby Plecker, a physician who was also Virginia’s first State Registrar of the Bureau of Vital Statistics, from 1912 to 1946. Plecker, a Virginia native like Justice Daniel of the Supreme Court, was fixated on the possibility that some multiracial Virginians would attempt to pass as white. In his obsessive effort against what he called the “organized propagation of…racial falsehood,” Plecker used his authority as the bureau’s first head to implement a requirement that all children born in Virginia from 1912 onward receive birth certificates complete with racial designations. It was a policy that had inescapable social effects, since registration with the bureau was a prerequisite for many forms of civic engagement, including enrolling in school, registering for the draft, and getting married. 

Plecker’s preoccupation with passing also led him to create a list of surnames, organized by county and city, that could be used to identify African Americans and counter their ability to pass as white. Plecker distributed this list with instructions to courts, hospitals, and schools, indicating that people with these names were prohibited from associating with phenotypically white people. The list reflected the meticulousness with which he executed his obsession. In a 1943 letter about Virginia’s system of racial tracking, he even boasted that “Hitler’s genealogical study of the Jews is not more complete.” 

Plecker’s objectives were most fully realized in the New Virginia Law to Preserve Racial Integrity, passed by the Virginia State Legislature in 1924. The act codified the so-called “one-drop rule” by defining as “white” a person “who has no trace whatsoever of any blood other than Caucasian,” and prohibiting marriage between whites and nonwhites. Supplemental legislation defining “colored persons” was later passed in 1930: “Every person in whom there is ascertainable any negro blood shall be deemed and taken to be a colored person.” 

The aim of Virginia’s explicitly hereditary articulation of racial categories was to use biology as a restorative tool for the threatened antebellum social order. Plecker’s efforts—later reified in the one-drop rule—were vital to the execution of the state’s laws against intermarriage. Over time, these and other state-level domestic-relations laws were used as a bridge for carrying racially nativist imperatives into the implementation of jus sanguinis citizenship law.

Kristin A. Collins, an immigration expert at Boston University School of Law, has examined the connections between jus sanguinis and the legal construction of family not through Virginia’s race codes, but rather through other kinds of state-level domestic laws. In examples involving discrimination against Chinese Americans’ claims to transmit birthright citizenship, she found that exclusionary interpretations of state-level marriage laws were used by gatekeepers as a way to deny the benefit of jus sanguinis to children born abroad whose fathers were Chinese American. 

In other words, the historical record reveals a “direct link,” Collins said, between exclusionary state marriage laws and the implementation of jus sanguinis citizenship policy. In a landmark article on the subject, she summarizes the central link between family law and jus sanguinis with devastating concision: “The history of jus sanguinis citizenship law demonstrates that laws governing marriage and birth status served [a nativist] agenda…providing officials with an exclusionary tool” to draw lines between citizen and noncitizen.

Despite this pocked history, the general principle of jus sanguinis is a key part of the Foreign Affairs Manual and very usefully allows citizens of the United States—whether they were born such or naturalized—to transmit citizenship status to their children at birth. 

When this principle is juxtaposed with jus soli, an apparent tension at the heart of our definition of birthright citizenship arises. On the one hand, jus sanguinis implies that, if certain residency conditions are met, a child born with the genetic material of an American citizen is also an American citizen, regardless of that child’s country of birth. On the other hand, jus soli implies that a child born on American soil is an American citizen regardless of genetic makeup. In a kind of hermeneutical paradox, one principle seemingly negates the premise of the other. Is it heredity that defines us or geography? Time or space?

However, a close reading of the manual reveals that immigration and citizenship law is porous and evolving. That between special carve outs for Inuit and Native American peoples, stipulations for children born to diplomats, exclusions for hostile occupying forces, distinctions for foreign vessels, and accommodations for foundlings, this body of law is less a fixed entity and more an accretion of historical contingency and political circumstance. Indeed, the manual states in its own introduction to the section on US citizenship and nationality: “As U.S. laws have changed, the requirements for conferring and retaining derivative citizenship have also changed.”

Rogers Smith, a University of Pennsylvania political science professor and scholar of birthright citizenship, put it to me this way: “It’s important to understand that the citizenship laws of the United States and the citizenship laws of every political community are not the coherent expression of any one single theory or conception of citizenship. They rather represent politically negotiated compromises amongst different conceptions of who the citizenry should be now and going forward. And, so, laws representing different viewpoints are combined and are equally authoritative, even though, yes, there are conceptual tensions amongst them.” Because these various conceptions are not mutually exclusive, the practical effect of having both jus soli and jus sanguinis as bases for the acquisition of citizenship is to broaden, not constrict, the possibilities for children to become US citizens.

But while it’s true that the law is in perpetual flux—a continually contested and changing body of knowledge—there inevitably arrives that moment when an abstracted view gives way to the reality that where legal custom interfaces with people’s lives, it becomes something discrete, palpably experienced not just as an evolving discourse, but rather, like Heraclitus’s proverbial river, as an object replete with mass and momentum. When Andrew and Elad Dvash-Banks talk about their sons and their fears about keeping their family together, they don’t speak about the law as an abstract text that’s constantly obviating and revising itself; they feel it as a force impinging on their daily life. 

“As a parent of twins,” Andrew said, “all day I’m trying to work to even things out for my boys. Whether it’s ‘Let’s split the apple right down the middle,’ or ‘You both want to play with the toy? Okay, you five minutes and you five minutes.’” He added: “The inequality of one child not being a citizen of the country where he lives and the other one being a citizen—and just being treated differently by the government—for me, this is what is so difficult.”

He wonders about a future in which his son begins to realize that he is the only one in his family without legal US status: Where does that leave him? Will he be able to register to go to school or get a driver’s license? Will he ever be equal to his twin brother? Will the family even be able to stay in the United States? 

Andrew’s questions don’t entertain the possibility of Ethan staying in the United States as a lawful permanent resident or by means other than birthright citizenship. Nonetheless, the questions add up to a realization that his and Elad’s struggle for recognition as equal citizens lives on in their fight for their kids to be similarly recognized.

Whether citizenship and immigration law catch up to the realities of assisted-reproductive technology depends in large part on how society responds to these innovations and the unprecedented circumstances they create. Beyond in vitro fertilization and surrogacy, even more complex and boundary-blurring technologies are emerging: mitochondrial egg donation (in which a child is produced from two ova and one sperm and has DNA from three different people), gene splicing, artificial wombs, and uterus transplants. All of these technologies—and others not yet imagined—will require law and society to contend with radically new questions.

Change has already taken place in at least one sphere. In 2014, the Obama administration quietly loosened the rules for interpreting the INA to allow a US-citizen mother who is not the genetic mother of the child she bears to transmit US citizenship to that child. “A non-genetic gestational mother (person who carried and gave birth to the child) who is also the child’s legal mother,” the policy alert said, “may be recognized in the same way as genetic legal mothers are treated under the INA.” Here, the longstanding principle of jus sanguinis was subtly but significantly modified. The explicit genetic threshold for parentage—the DNA litmus test that was applied to Ethan—was supplanted, in the case of gestational mothers, by a more general and inclusive biological threshold for parentage.

The implications of this shift are manifold. “Previously,” per the 2014 policy alert, “a genetic relationship with a U.S. citizen parent was required in order for a child born abroad to acquire citizenship at birth through his or her parent.” The policy shift recognized the literal labor entailed in motherhood. It also raised some interesting questions. If DNA doesn’t transmit citizenship in cases involving gestational legal mothers, what does? Does the maternal serum that crosses the placental barrier during pregnancy satisfy the demands of the “law of the bloodline?” Is citizenship diffusing alongside oxygen through the placenta? Or perhaps there’s some metaphysical residue of citizenship that just rubs off on the child? If a supracorporeal essence does exist, might there not be ways for US-citizen parents other than gestational mothers to transmit it to their legally recognized children? 

What the Dvash-Banks case implicitly argues for is the erasure even of a biological threshold in cases like theirs. For some, this may seem radically counter-intuitive. Indeed, the logic of biology pervades US-parentage law. In Nguyen v. INS for example, the US Supreme Court described the proof of motherhood as being “inherent in birth itself.” It then went on to render the parental rights of genetic fathers less stable than those of genetic mothers based on the biological observation that “a mother must be present at birth but the father need not be.” The opinion concludes: “The difference between men and women in relation to the birth process is a real one, and the principle of equal protection does not forbid Congress to address the problem at hand in a manner specific to each gender.”

However, family law on state and local levels already incorporates a broad framework for recognizing family that goes beyond traditional genetic and marital thresholds. At the state level, a “functional” definition of family often prevails: a framework that’s concerned with the real-world work of being a parent (for example, feeding, clothing, housing, and otherwise financially supporting a child). Likewise, states and local municipalities use a framework of “intentionality” to define family by asking whether the intent to be a parent exists. Through this lens, intention can supersede biology (as in the case of a surrogate who gives birth to a child but does not intend to be a parent to the child).

Still, citizenship and immigration laws operate under different incentives than state-level family law when attempting to establish parentage, writes Duke Law immigration scholar Kerry Abrams. Whereas state governments are focused on the privatization of custodial responsibility, the federal government is driven by a desire to reduce fraud and maximize administrative efficiency—as well as by political imperatives (whether acknowledged or not) to sculpt the cultural and demographic character of the nation. 

In a twist, after the Dvash-Bankses’ lawsuit was initially filed, the family and the State Department agreed to try to find a resolution through private mediation, hoping to avoid litigation. Aaron Morris, of Immigration Equality, said Andrew and Elad want “recognition of both boys’ birthright citizenship,” adding that “[n]othing short of that will do, and we will fight for that recognition for as long as it takes.” Mediation between the parties began in November 2018, with the expectation that they arrive at a resolution by a court-mandated deadline of mid-December. As of this writing, no settlement had been reached, and a trial is set for April 2019 in case mediation fails. Requests for comment by the State Department about its rationale in this case were referred to the Department of Justice, which did not respond to multiple inquiries. But in its answer to the family’s legal complaint, the Department of Justice flatly asserted that Andrew and Ethan “are not entitled to any relief” and asked the court to dismiss their suit. 

Many of the legal questions in this case arise because the State Department’s definition of birth “in wedlock” bakes notions of biology and genetics into a phrase that is seemingly about marriage: “a person is considered to be born in wedlock for the purposes of citizenship acquisition when the genetic and/or gestational parents are legally married to each other at the time of the person’s conception or birth.” All this while the section of the INA concerning citizenship is actually silent on the matter of biological links between children and their married parents, the immigration scholar Scott Titshaw told me. 

Titshaw, a Mercer University School of Law professor who served on the Board of Directors of Immigration Equality from 2002 to 2008, is the author of a prescient 2010 law-review article about immigration rules and their potential implications for same-sex spouses in a post–DOMA world. He also pointed out that the INA itself does not actually use the term “jus sanguinis.” Rather, the term’s prominence in common law and in the Foreign Affairs Manual has colored how the statutory language of the INA is being interpreted by the State Department. 

The department’s definition of wedlock creates a paradox for all gay spouses because it necessarily categorizes their kids as being born “out of wedlock,” even if their parents are married. Once deemed born out of wedlock, these kids are automatically subjected to the section of the INA intended for unmarried parents, which imposes a biological requirement for citizenship. Court filings already reveal wrangling on this front, with the Dvash-Bankses’ lawyers wanting to make the State Department’s methods of interpreting the INA fair game for discovery. Specifically, they want to expose the interpretive machinery of the Foreign Affairs Manual itself to inquiry, claiming that it’s inconsistent for the State Department to rely on the manual as justification for denying Ethan’s citizenship and simultaneously block any discovery into how or why the interpretative framework of the manual developed as it did in the first place. The State Department, seeking to shield itself from this kind of epistemological scrutiny, counters: “Discovery is not appropriate or necessary in this case.”

Court filings also show the State Department’s preliminary attempt to rebut the Dvash-Bankses’ claim of discrimination based on sexual orientation by asserting that the Foreign Affairs Manual classifies any child without genetic material from both of its legally married  parents as being born out of wedlock, including the children of married heterosexual couples using a surrogate arrangement identical to the one that produced Ethan. In this case, the State Department essentially argues that, yes, it does differentiate, but it does so with everyone and from a necessity imposed by the long-understood genetic threshold for parentage. 

The Dvash-Bankses’ attorneys counter that same-sex spouses and their families would be disproportionately and discriminatorily affected even if the policy is applied uniformly. This disparate impact occurs precisely because same-sex couples must use donor eggs, donor sperm, or surrogates to have children. Unlike the children of heterosexual couples, their children cannot possess genetic material from both of their legally married parents and are always automatically precluded from consideration for birthright citizenship under Act 301 of the INA.

Hanging over all of this, like a metaphysical question mark, is the gestational mother newly recognized by the 2014 Obama administration policy shift. This mother, who carries her child to term but does not have any genetic ties to it, enjoys a power to transmit citizenship that is denied to both gay and straight parents using surrogates. The shift from a DNA litmus test for parentage to the more expansive biological threshold in the case of gestational mothers could reveal the underpinnings of the manual’s interpretive schema to be more elastic than the State Department may wish to concede.

There is also a piece of potentially relevant case law—Solis-Espinoza v. Gonzales, from the United States Court of Appeals for the Ninth Circuit—that rejected the State Department’s genetic-essentialist approach to making citizenship determinations. In this case, the petitioner, Solis-Espinoza, claimed US citizenship as a defense against removal from the United States in an immigration proceeding, despite the fact that neither of his genetic parents was a US citizen. Solis-Espinoza based his claim to citizenship on his relationship to his father’s US-citizen wife, who was not his genetic mother but nonetheless accepted him as her own child. Indeed, just as Andrew is Ethan’s legally named father on birth records, she was listed as Solis-Espinoza’s mother on his birth certificate. 

The question before the court was whether the INA required a blood relationship between a child and a US-citizen genetic parent in order for the child to acquire citizenship at birth. The Ninth Circuit held that a plain reading of the statute required no such blood relationship for Solis-Espinoza to claim citizenship, and it declared him a US citizen. 

In its reasoning, the court made two significant points: first, that the married status of Solis-Espinoza’s father and the woman who accepted him as her son was what mattered, not the existence of blood ties between the child and a US citizen. Second, the court stated that citizenship at birth could be derived from a “practical” parent of either sex, so long as the practical parent was married. In other words, the child was effectively deemed to be born in wedlock because the genetic father’s US-citizen spouse accepted and raised him as her son—even though his genetic father and his genetic mother were Mexican citizens. Family, it would seem, transcends biology.

Technology’s power to radically alter traditional ideas of family is undeniable. A self-imposed blindness to these changes could exacerbate, rather than contain, the vulnerabilities of the State Department’s current immigration scheme, most notably by creating a class of biotechnologically exiled or stateless children who, by virtue of their liminality, might undermine the stability of the state from within. Silence or avoidance on the part of the law, then, isn’t an option—either for the state or for the dignity of its subjects.

From Justinian I to Plecker to the Dvash-Banks case, the questions that biology has been asked to answer have assumed different forms over time, but they are all variations of an effort to use (and abuse) science to define the contours of the body politic—the most fundamental unit of which is, arguably, family. Inevitably, the impulse to reify family under the presumption that biology is fixed is complicated not only by the essentially fluid nature of biology, but also by the potential disconnect between biology and parental intent.

Recognizing this gap between biology and intent, the American Bar Association (ABA) submitted a brief in 2016 urging the State Department to use “parental intent” to define the relationships needed to transmit US citizenship. The ABA’s stance stemmed from an awareness that advancing technologies have created a world in which an increasing number of children “do not have a biological, or gestational, relationship to their legal, intended parents.” To date, the ABA’s recommendation has not been assimilated by the State Department.

Despite the compelling argument for parental intent, the logic of biology is pervasive. In recent months, the news has been flooded with catastrophic stories about the separation of migrant families at the US–Mexico border. For some of these families, DNA samples from saliva were the only thing that created an obligation for the US government to reunite mothers with their children. In other words, biology was the fail-safe against dismissal of parent-child relationships. 

Biology also subtly informs the Dvash-Bankses’ own argument for the recognition of their boys’ birthright citizenship. Throughout their legal complaint, Andrew and Elad’s sons are referred to, correctly, as “twins,” “twin” brothers, or “twin” sons. The majority of references to the boys in the complaint and in media appearances emphasize this biological fact about them. The complaint never refers to the boys together simply as brothers, and the power of this choice is clear: We are to understand that these two children share an essential sameness, and it is this sameness upon which the argument for their equal treatment is built, both in the courtroom and in public opinion. 

It’s a compelling rhetorical gesture, but one based on precisely the kind of biological reasoning that the Dvash-Bankses’ case seeks to free Ethan and Aiden from. The boys are twins by virtue of biological circumstance, born at the same time from the same womb. But they would be no less related to each other or their fathers if they were born a few years apart. The legal team’s intense focus on their twin status seems to recognize the unique power of this biological fact to confer identity upon the boys—and it subtly attempts to use this power to undermine the logic of biology that marks them as different under current law.

In light of everything they’ve been through—being exiled by DOMA, starting a family far from home, being embroiled in their legal ordeal—I asked why Andrew and Elad didn’t just stick with the life they made together in Toronto.

“California is my home,” Andrew said without a moment’s hesitation. “I love Canada, it’s a beautiful place. Canada has been incredible to us. But it’s not my home. And it’s not where I grew up. It’s not where my five brothers and sisters live. It’s not where my fourteen nieces and nephews live. And when I think about having kids—having my kids run around in a backyard with their fourteen cousins, that can’t happen in Canada. It can happen only in Los Angeles. And that was always the dream.”

You can catch a nascent glimpse of that dream in a photo of Andrew and Elad breaking glass under the chuppah at their wedding. The still-shot appears in a biographical video of the Dvash-Banks family produced by Immigration Equality. They’re smiling in the frame, not yet sobered by that moment when the consular official asked: “Do you know who these kids are genetically related to?” Scenes from their daily life follow: Elad sitting at the foot of a crib giving one of the boys a bottle; Andrew reading them a book; the twins eating messily in their high chairs; the whole family going out for a walk with a double stroller; the kids being put down for bed in their shared room. A vibrant, uncertain life. It shows a family trying to build a home in exile, asking a question of its own.


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