Watch CBSN Live

New push to recognize U.S. citizenship of boy whose twin is already a citizen

Democrats are calling for the State Department to recognize the citizenship of children whose parents are in same-sex marriages. More than 90 lawmakers — including Rashida Tlaib, Jerry Nadler and Adam Schiff — signed a letter Thursday addressed to Secretary of State Mike Pompeo urging the policy change.

The letter was released one month after the State Department filed an appeal after a federal judge determined that two-year-old Ethan Dvash-Banks was indeed a U.S. citizen, though he was conceived using sperm from his father, Elad, an Israeli citizen. His twin brother, Aiden, was conceived using sperm from his father, Andrew, who is a U.S. citizen.

The couple conceived the twins via a surrogate in Canada, where they moved so they could legally marry in 2010. The boys are fraternal; one has blond hair and one has dark brown hair. They were born at the same time by the same surrogate.

Gay Couples Kids Citizenship
Elad Dvash-Banks, left, and his partner, Andrew, pose for photos with their twin sons, Ethan, center right, and Aiden in their apartment in Los Angeles. District Judge John Walter said Thursday, Feb. 21, 2019, that the State Department was wrong to deny citizenship to 2-year-old Ethan Dvash-Banks. The State Department is appealing the decision. Jae C. Hong / AP

The dads sought recognition of the twins' U.S. citizenship and to do so, both had to submit DNA tests and other documentation to prove they were the boys' biological parents. This requirement does not exist for the children of a married U.S. citizen, according to Immigration Equality, an LGBTQ immigration rights organization helping the couple. Democrats were quick to point out the discrepancy.

"The State Department is now misapplying the Immigration and Nationality Act by treating the children of same-sex couples as born 'out of wedlock.' We find this to be deeply offensive," lawmakers wrote. "Welcoming a new child into a family should be a time of joy and excitement, but instead it is being met by your Department treating these couples differently than their different-sex counterparts."

A federal judge ruled that Ethan was a citizen at birth in February. The State Department appealed that decision in May. The department insists a married U.S. citizen must have a biological connection to their child to pass on birthright citizenship, according to Immigration Equality.

Gay Couple's Kids Citizenship
The toddler twins share almost everything: the same toys, the same nursery, the clothes and the same parents. Everything but a toothbrush and U.S. citizenship.  Jae C. Hong / AP

Immigration Equality believes the State Department's claim is false. "It's discrimination—pure and simple—and Immigration Equality will continue to fight on behalf of LGBTQ families until this policy is eliminated," the nonprofit wrote.

The Dvash-Banks family are not the only Immigration Equality clients fighting this battle. Allison Blixt and Stefania Zaccari are what Immigration Equality calls a "bi-national couple." Allison is American and Stefania is Italian. 

Like the Dvash-Banks, the women could not get married in the U.S. due to the Defense of Marriage Act. So, they tied the knot in London. That is where their sons, Lucas and Massi were born. Massi was carried by Allison. Lucas was carried by Stefania.

Allison should be able to pass her citizenship onto her children, but because the U.S. does not consider her legally married to Stefania, the State Department has refused to recognize Lucas' citizenship, according to Immigration Equality.

Immigration Equality insists that in these and similar cases, "the government is fervently defending a policy that discriminates against same-sex couples."

Gay Couples Kids Citizenship
Immigration Equality is helping at least two same-sex couples in their fight for citizenship for their children. The organization says "the government is fervently defending a policy that discriminates against same-sex couples." Jae C. Hong / AP
View CBS News In