U.S. State Department Updates Policy on Citizenship Transmission to Reflect Contemporary Family Formation

On Tuesday, the U.S. State Department announced a significant change in official policy regarding citizenship of children born through assisted reproduction. The new policy is to recognize the citizenship of children born abroad to married parents where at least one parent is a U.S. citizen and the child has a genetic or gestational tie to either parent. This updated application of citizenship transmission recognizes contemporary family formation, including families formed through assisted reproductive technology, and respects the ability of same-sex married parents to pass on citizenship to their children on equal terms with different-sex parents.

GLAD Senior Staff Attorney Polly Crozier, a leading advocate for equal recognition of legal parentage for children of LGBTQ+ families, issued the following statement:

GLAD welcomes this announcement from the State Department that recognizes and respects the realities of contemporary families and ensures equal treatment to children born to LGBTQ married parents with respect to citizenship. It conforms to clear constitutional requirements as affirmed in multiple Supreme Court and appellate rulings, including Obergefell, Windsor and Pavan, which each require that married same-sex couples be treated equally to different-sex couples in all regards. This equal treatment obviously includes parentage and the ability to pass on citizenship to their children. 

The State Department’s updated policy reverses the position held by the prior administration, which recognized citizenship only if a child born abroad to married same-sex parents had a genetic tie to the U.S. citizen parent. We applaud the Biden-Harris Administration for recognizing that our government should support families, not create barriers that make it harder for parents to care and provide for their children.”

Last October, the Ninth Circuit issued a powerful blow against the Trump administration’s position in the case Dvash-Banks v. Pompeo, challenging the U.S. Consulate’s refusal to recognize the citizenship of a child born abroad to Andrew Dvash-Banks, a dual U.S. and Canadian Citizen, where their child’s genetic tie was to his husband, Elad, an Israeli citizen. Together with Wilmer Hale and NCLR, GLAD authored an amicus brief in Dvash-Banks arguing that the U.S. Consulate’s position, which disregarded Andrew and Elad’s marriage and the integrity of their family, could not be reconciled with Obergefell, Windsor, and Pavan. The Ninth Circuit recognized both men in the married couple as parents and both of their sons as citizens.