Binational married Los Angeles couple Andrew and Elad Dvash-Banks are squaring off again with the State Department as the legal battle over the right of citizenship for one of the couple’s two-year-old twin sons escalated May 7 when the Trump administration filed an appeal of a pro-gay decision.
The State Department had only conferred citizenship status to twin brother Aiden, which DNA showed was the biological son of U.S. citizen Andrew. Ethan’s biological father is Elad, an Israeli citizen. The twins were born by the same surrogate mother minutes apart.
On Feb. 21, U.S. District Judge John F. Walter ruled that Ethan “has been an American citizen since birth.” He wrote that the State Department statute does not contain language “requiring a ‘blood relationship between the person and the father’ in order for citizenship to be acquired at birth.”
Immigration Equality, which filed a lawsuit on the couple’s behalf, told the Los Angeles Blade in February that, “the children of a U.S. citizen who marries abroad are entitled to U.S. citizenship at birth no matter where they are born and even if the other parent is a foreigner.”
Andrew was studying in Israel when he met his future husband, Elad. Because they couldn’t marry at the time in the U.S. or in Israel, they moved to Canada where they wed in 2010. The children were born by a surrogate in September 2016. The family moved to Los Angeles on June 24, 2017.
“Once again, the State Department is refusing to recognize Andrew and Elad’s rights as a married couple. The government’s decision to try to strip Ethan of his citizenship is unconstitutional, discriminatory, and morally reprehensible,” Aaron C. Morris, executive director of Immigration Equality, told The Daily Beast.
Morris successfully argued before Judge Walters that the State Department’s policy requiring genetic testing for the children of same-sex binational couples created a new double standard for citizenship: one for the children of same-sex couples and one for the children of straight couples.
Morris also noted that in the Ninth Circuit Court of Appeals, where the State Department has filed its appeal, the standard of using DNA testing to ensure a biological relationship between a child and a married U.S. citizen parent in order to confer citizenship has already been soundly rejected.
“This is settled law in the Ninth Circuit, which has already established that citizenship may pass from a married parent to a child regardless of whether or not they have a biological relationship,” Morris said.
A State Department spokesperson told The Daily Beast that the department “does not comment on pending litigation.”