James Derek Mize, left, and his husband, Jonathan Gregg are both US citizens. Their daughter, who was born abroad, did not qualify for citizenship. Photo / Johnathon Kelso
James Derek Mize is an American citizen, born and raised in the United States. His husband, who was born in Britain to an American mother, is a US citizen, too.
But the couple's infant daughter isn't, according to the State Department.
She was born abroad to a surrogate, using a donor egg and sperm from her British-born father. Those distinct circumstances mean that, under a decades-old policy, she did not qualify for citizenship at birth, even though both her parents are American.
"It's shocking," said Mize, 38, a former lawyer who lives in Atlanta with his husband, Jonathan Gregg, a management consultant. The couple received a letter denying their daughter's citizenship last month.
"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."
Their case illustrates the latest complication facing some families who use assisted reproductive technology, like surrogacy and in vitro fertilisation, to have children. For years the techniques have set off provocative legal and ethical debates about what defines parenthood. Immigration and citizenship are the latest frontier in those debates.
At issue is a State Department policy, based on immigration law, that requires a child born abroad to have a biological connection to an American parent in order to receive citizenship at birth. That is generally not a problem when couples have babies the traditional way, but can prove tricky when only one spouse is the genetic parent.
The policy has come under intense scrutiny in recent months amid lawsuits arguing that the State Department discriminates against same-sex couples and their children by failing to recognise their marriages. Under the policy, the department classifies certain children born through assisted reproductive technology as "out of wedlock," which triggers a higher bar for citizenship, even if the parents are legally married.
In one instance, a married Israeli-American gay couple had twin sons in Canada using sperm from each of the fathers. The biological son of the American received citizenship, but his brother, the biological son of the Israeli, did not. In February, a federal judge sided with the couple, calling the State Department's interpretation of the immigration law "strained." The department is appealing.
The government is also fighting a similar suit from a lesbian couple in London, who did not use a surrogate. One is American and one is Italian. They took turns conceiving and carrying their two children. Only the child born to the American mother was granted citizenship. Last week, a federal judge allowed the case to proceed, calling the family's predicament "terrible" and "outrageous."
Though the policy predates the Trump administration, the president's opponents have seized upon it. On Friday, Speaker Nancy Pelosi of California, the Democratic leader of the House, called it "an unconscionable attack on American families."
The State Department, which has emphasised that the policy applies to opposite-sex and same-sex couples alike, declined to comment, citing pending litigation.
The focus on a biological connection dates to the Immigration and Nationality Act of 1952, well before the advent of modern reproductive technology and the legal recognition of same-sex relationships.
The State Department's policy on assisted reproductive technology, first drafted in the late 1990s, is based on an interpretation of that law, which includes language that children are "born" of their parents and mentions a "blood relationship" in certain cases.
The rules for passing down citizenship are meant to ensure that children born abroad have a sufficient connection to the United States.
"Proof of the biological connection is necessary so that the born-abroad citizenship route is not susceptible to fraud by people claiming they are children of United States citizens when, in fact, they are not," said John C. Eastman, a senior fellow at the Claremont Institute, a conservative think tank in California.
The interpretation has led the State Department to regard births from assisted reproductive technology as "out of wedlock," if the source of the sperm and the egg do not match married parents. Such a designation comes with extra requirements for transmitting citizenship, including showing that a biological parent is a US citizen who has spent at least five years in the United States.
Scott Titshaw, an associate professor at Mercer University School of Law in Macon, Georgia, said the policy reflects a "mismatch" of immigration and family laws. "It runs counter to the current societal understanding of what marriage is," he said. "And probably more important, it runs counter to the current legal definition of what parentage is."
Under the Obama administration, the State Department adjusted the requirement so that a parent could also establish a biological connection by giving birth, in addition to supplying the egg or sperm. That allows a lesbian couple to have a child "in wedlock" if one woman provides the egg and the other carries the baby.
But two men in a marriage don't have that option. "A same-sex male couple cannot conceive a child where both of them are a parent under this definition," Titshaw said.
It's unclear how many people are affected by the policy, or how many are same-sex couples. Relatively few families go abroad to have children through assisted reproductive technology, but there can be financial or personal reasons for doing so.
Mize and Gregg, who met at a swim team practice in New York in 2014 and married the next year, worked with a close friend, who is British, to serve as their surrogate. Their daughter, Simone, was born at a British hospital last year.
But after obtaining her birth certificate abroad, the couple said they applied for her US citizenship last month, only to find out she didn't qualify.
Gregg, who had lived in Britain for most of his life before moving to the United States to be with Mize, did not have enough years in America, according to a letter from the US Embassy in London.
"It's a psychological trauma," Mize said.
"When we went to the embassy and they said, 'You're not a family, you're not married and, Derek, you're not her father," he recalled, "it was just like a flood of every emotion I've ever had since I was first called a faggot came rushing into my body."
In court filings, the State Department said that officers are expected to carefully investigate all assisted reproductive technology cases, "irrespective of the sex or sexual orientation of the legal parents." And there have been cases where different-sex parents were asked for biological evidence, lawyers in the field said.
But in practice, advocates say the policy has a particular impact on same-sex couples.
"The State Department is effectively saying our marriage doesn't count," said Adiel Kiviti, 40, another father who said that his child's citizenship was recently called into question. "If you aren't going to afford us the benefits of a married couple, what's the point of giving us the right to marry?"
Adiel and his husband, Roee Kiviti, were born in Israel and later naturalised, they said. The men, whose interview with The Daily Beast drew renewed attention to the policy last week, have two children, each born with the help of a surrogate in Canada.
When they sought citizenship for their older child, Lev, in January 2017, they said they were not asked about his parentage and he was granted citizenship. But after their daughter, Kessem, was born this year, the State Department asked for documentation. Adiel, who is Kessem's genetic parent, had not spent five full years in the country when the girl was born, the family said. They are discussing how to respond.
"Where are they going to deport our child to?" said Roee, who works as a television journalist. His husband runs a media production business in Washington. "We live in America."
Mize, whose daughter is now 11 months old and learning to walk, feels a similar stress. He said he had been traveling back and forth to Britain with Simone, who has a tourist visa. He worries about disrupting her development at such a young age, and fears what could happen if her legal status is not resolved.
"This is where our life is. This is where our jobs are," he said. "Our daughter can't be here, but she has no one else to care for her."
Written by: Sarah Mervosh
Photographs by: Jonathon Kelso
© 2019 THE NEW YORK TIMES
The prosecution of Alaa Mousa relied on the legal concept of universal jurisdiction.