Trump administration loses fight to stop child born abroad to gay couple from becoming US citizen
Elad Dvash-Banks (right) and his partner Andrew play with their twin sons Ethan (left) and Aiden in their Los Angeles (AP) apartment.
A federal appeals court has ruled against the Trump administration's attempt to deny citizenship to one of two foreign-born twins of a gay couple.
The 9th Appeals Court in San Francisco on Friday concluded that there should be an earlier decision by a trial judge in Los Angeles and that four-year-old Ethan Dvash-Banks is a US citizen.
Ethan was conceived with his Israeli biological father's semen and was born through surrogacy in Canada.
His other father is a U.S. citizen and a district court ruled in May 2019 that a child is legally not required to demonstrate a biological relationship if his parents were married at the time of birth and that a passport should be issued to Ethan.
The State Department appealed to more than a dozen Democratic senators to write to Secretary of State Mike Pompeo condemning an action that would lead to the family separation.
The Dvash-Banks case was not an isolated case, wrote the senators. The State Department has told many same-sex couples "that by definition their marriages are invalid and that any children they have abroad are at risk of statelessness."
Married heterosexual couples have presumption of ancestry and typically do not need to demonstrate that their children are biologically related to them. This assumption is not granted to same-sex couples.
The Immigration and Citizenship Act was written in 1952, long before surrogacy, sperm donation, fertility treatments, and same-sex marriage
On Friday, a three-judge panel unanimously decided that it was bound by precedents from previous decisions and issued a brief memorandum without hearing any arguments.
Andrew Dvash-Banks, Ethan's American father, said he was thrilled with the decision on his son's citizenship as it removes the uncertainty that has ruled the family for nearly four years.
The unusual case began not long after the twins were born. The American consulate in Toronto denied Ethan's citizenship after DNA tests showed he was the biological son of Elad Dvash-Banks, an Israeli citizen.
His twin brother Aiden received citizenship because he was the biological son of Andrew Dvash-Banks.
Andrew met Elad while studying in Israel. Since they could not legally get married in any of their home countries, they moved to Canada and married in 2010.
The twins were born to a surrogate mother in September 2016 with sperm from each of the fathers and donor eggs.
Immigration Equality, an LGBTQ immigrant rights group, filed the lawsuit to seek the same rights for Ethan as his brother.
Aaron Morris, executive director of Immigration Equality, and one of the family's attorneys said that district courts in Maryland, Georgia and Washington, DC have made similar decisions and that the Department of Justice has admitted that if the court would lose the law would apply in the event.
"This seems like an issue they don't want to move on," said Morris. "Every federal court that heard the government's argument ruled against them."
The State Department said it was reviewing the decision with the Justice Department.
With coverage from The Associated Press
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