Two married men, James Derek Mize and Jonathan Gregg, had a daughter through assisted reproductive technology. The girl is biologically related to Gregg, who was born in Britain to an American mother. Mize was born and raised in the United States. Both are U.S. citizens, but they recently received a letter from the State Department denying birthright citizenship to their daughter.

“We’re both Americans; we’re married,” Mize said. “We just found it really hard to believe that we could have a child that wouldn’t be able to be in our country.”

Assisted reproductive technology has raised legal questions about who, exactly, counts as a parent. That issue is impacting immigration law directly as more couples use in vitro fertilization, surrogacy or other reproductive techniques. The issue also seems to impact same-sex couples especially.

As we discussed on this blog in February, the State Department had denied citizenship to one of two twins. Each twin was the biological child of one of two married fathers, but only one of the fathers was a U.S. citizen. The State Department’s position was that the child of the non-citizen father could not be a birthright citizen because his parent was not a citizen.

That, according to a federal judge, was discriminatory. When opposite-sex parents are married, the citizenship of one parent is generally conferred upon all children of the marriage. The State Department seemed to be refusing to do so because the couple was same-sex. The State Department denies that the policy applies differently to same- and opposite-sex couples.

In this latest case, however, the two men are both citizens. However, their child was born in Britain, so a source of citizenship other than a U.S. birth was needed. If this were a couple who hadn’t used assisted reproductive technology, there would be little question that their child was a citizen regardless of her being born abroad.

State Department policy considers assisted births ‘out of wedlock’

The fundamental problem seems to be a State Department policy that attempted to define whether children are “born” to a U.S. parent. According to the New York Times, the State Department has interpreted the Immigration and Naturalization Act of 1952 as requiring children born abroad to have a blood relationship to a U.S.-citizen parent. The policy, however, defines children born through assisted reproductive technology as born out of wedlock — and that affects whether the child is eligible for birthright citizenship.

The rules for child citizenship are incredibly complex. If you are a U.S. citizen and have a child who was born abroad, you may need to apply for citizenship on that child’s behalf. Contact Yew Immigration Law Group for insight on how to proceed.