How to Explain to Your Twins Why Only One Can Be American: The Right to Citizenship of Children Born to Same-Sex Couples Through Assisted Reproductive Technology

By Lena K. Bruce

Sections 301 and 309 of the Immigration and Nationality Act (INA) govern birthright citizenship by descent. Per the U.S. Department of State’s (DOS) interpretation of these sections, to transmit citizenship to a child, the U.S. citizen-parent must have a biological connection with the child. For couples who use assisted reproductive technology (ART) to have children, however, this means that one parent will always be barred from transmitting citizenship to their own child. This is because in ART families, at least one parent will always lack the biological connection that the DOS requires to transmit citizenship pursuant to the INA. This policy disproportionately affects same-sex couples since same-sex couples who choose not to adopt rely almost exclusively on ART to have children.

Further, even if the citizen-parent is able to establish a biological connection, the children of married same-sex couples are categorically considered born out of wedlock and therefore subjected to significantly harsher citizenship requirements.

The DOS’s interpretation of the INA raises serious concerns about the protection of same-sex couples’ constitutional rights. It also prompts policy questions about the importance of biology versus intent in determining parentage. This Note argues that the effects of the DOS’s interpretation on same-sex couples can be counteracted through a dual approach. First, Congress must amend the INA to recognize intent-based parentage. Second, until Congress passes such an amendment, federal courts and state legislators must collaborate to protect the rights of same-sex parents.