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Two married same-sex couples are suing the U.S. State Department. Each couple has twins, and in each case, the government granted one twin citizenship and denied the other. The couples say it is clear discrimination that would not have happened to married opposite-sex couples. The federal government says it's policy. NPR's Leila Fadel reports.
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UNIDENTIFIED BOY: (Unintelligible).
LEILA FADEL, BYLINE: That sound you're hearing is a family video from the Dvash-Banks house of their twin boys running around the dining room table. They're pretty wobbly because they're only 16 months old. They may be twins born four minutes apart from the same womb to the same dads, but there's one key difference. Aiden was granted U.S. citizenship, and his brother Ethan is living in California on an expired tourist visa.
Why? The State Department says only one is the child of an American. One of the kids has the genetic material of his U.S. citizen father, the other from his other father, an Israeli citizen with a green card. Both boys were born in Canada. Andrew Dvash-Banks describes walking up to the consular officer to turn in the paperwork for his newborns' passports.
ANDREW DVASH-BANKS: She started off with, obviously the two of you had to use assisted reproduction in order to have your family. Tell me more about that. Tell me about who is genetically related to who and just asking these very, very probing, invasive questions that I felt were completely irrelevant.
FADEL: Andrew cried. His husband Elad got quiet. They didn't expect this. As the children of an American citizen, they should both inherit citizenship. But the couple used a surrogate abroad. Each child has genes from one of their fathers. And while Andrew and Elad never planned on telling anyone which child had Andrew's DNA and which child had Elad's, the State Department asked for DNA tests. Two months later, Andrew says, the letters came.
A. DVASH-BANKS: One addressed to Aiden with a U.S. passport saying, congratulations, here is your U.S. passport; you are an American citizen and one addressed to my son Ethan saying, we regret to inform you that your application for citizenship has been rejected.
FADEL: Despite both men being listed on the boys' birth certificates, Elad says the government made a distinction.
ELAD DVASH-BANKS: It was literally black and white on paper. Your kids are different.
FADEL: They had made their lives in Canada years earlier only because they couldn't get legally married in the United States until 2013. The State Department wouldn't comment for this story because of the pending litigation. But in the department's Foreign Affairs Manual, consular officers are instructed to ask for evidence if they suspect a child doesn't have a biological relationship with a U.S. citizen parent, specifically in cases of surrogacy or, quote, "other cases of assisted reproduction."
The discrimination is in the application because all same-sex couples will be flagged according to Immigration Equality, the LGBTQ immigrant rights organization that helped the couple file the lawsuit. They say more than two dozen other same-sex couples are dealing with the same problem. Another couple, two married women, also filed suit. They have two children. One got citizenship, and the other was refused. Aaron Morris is the executive director of Immigration Equality.
AARON MORRIS: The law is pretty settled that if you're a United States citizen and you lived in the U.S. for a certain amount of time, then you move abroad and you fall in love and you get married, any children you have are born United States citizens.
FADEL: And Morris says there's precedent of a similar case for the citizenship of a son from an opposite-sex couple who are also binational.
MORRIS: The government has created a policy without issuing any justification for it. And it's really hard to imagine any kind of justification that would warrant stripping a child of citizenship.
FADEL: Morris says what the State Department is doing is illegal and discriminatory, and he hopes these lawsuits clarify the status of children born to couples like Andrew and Elad Dvash-Banks. Leila Fadel, NPR News.
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