Federal statutes granting US. citizenship to children born abroad to an American parent became law long before the advent of reproductive technologies that have helped millions of people grow their families. As written, the laws require further interpretation to address situations where a child is born to a married couple when one parent is American but does not have a biological link to the child. The U.S. Department of State 's interpretation of the laws requires staff to review a series offactors when a family applies for their child's citizenship by birth abroad, and these factors result in gay and lesbian headed families always having to prove a biological link between the American parent and child, whilefamilies with straight parents generally do not.
The State Department's biological test does not reflect federal appellate courts' understanding of parent-child legal relationships. Courts understand the law as interested in the marital status of the parents at the time of birth, deeming a child born during the course of a valid marriage to be the legal child of the two married parents. This test ignores biology and can be more equitably applied to gay and lesbian parents as well as their straight peers, since the focus is on the parents' marriage rather than the child's conception.
Families whose children have been denied US. citizenship by birth abroad to a gay or lesbian American parent are suing the State Department, relying on the judicial test. This comment explores the laws and lawsuits and proposes changes to State Department policy.
David B. Joyner, "If Doubt Arises": How the Department of State's Interpretation of The Immigration and Naturalization Act Invites Discrimination Against the Children of Gay and Lesbian Americans, 42 Campbell L. Rev. 119 (2020).