Birthright Citizenship Ordered for Gay Couple’s Child Born Overseas Through Surrogacy

Jonathan Gregg, James Mize, and their infant daughter Simone.

A US district judge in Georgia issued a ruling on August 27 that the daughter of a married gay male couple, conceived through donor insemination from a donated egg with a woman in England serving as gestational surrogate, should be deemed a natural-born US citizen and entitled to a passport over the objections of the State Department.

The complication in this case is that the spouse whose sperm was used was not a US citizen at the time, though he has since become one through the marriage to his native-born US citizen husband.

If this sounds familiar, it is because the case of Mize v. Pompeo, decided on August 27, presents issues similar to those in Kiviti v. Pompeo, decided June 17 by a federal court in Maryland, which also ordered the State Department to recognize the birthright citizenship of the child of a married gay couple.

This is a recurring problem encountered by married gay male couples who use a foreign surrogate to have their child overseas.

Georgia federal judge overrules State Department posture toward biological offspring of a non-US spouse of American citizen

Under the 14th Amendment, all persons born in the US are citizens at birth, regardless of the nationality or citizenship status of their parents — the only exceptions being children born to foreign diplomats stationed in the US or to temporary tourist or business visitors. The citizenship of children born overseas to US citizens is determined by the Immigration and Nationality Act (INA).

Under the INA, there is a crucial distinction depending on whether the parents are married to each other when the child is born. One provision concerns the overseas children of married US citizens, and a different provision applies if the children are born “out of wedlock.” As interpreted by the State Department, if the parents are married, the child is a birthright citizen so long as it is biologically related to one of them. If the parents are not married, at least one them who is biologically related to the child must be a US citizen who has resided in the US for at least five years.

In this case, James Mize, a native-born US citizen, and Jonathan Gregg, a British native, met when Gregg moved to the US in 2014 and they subsequently married. They then decided to have a child together, and a British woman who was a friend of the couple agreed to be the gestational surrogate. They obtained an anonymously donated egg that was fertilized in vitro with Gregg’s sperm, implanted in their friend, who bore the child in England in 2018. The local authorities issued a birth certificate recognizing the two men as the parents of the child, Simone. The men had moved to England before the child was conceived.

After she was born, the couple applied for a US passport and citizenship declaration for Simone, but the State Department refused to provide it. The government treated the child as if she were born out of wedlock, since her biological parents were not married to each other, and found that her biological father, Gregg, had not resided in the US as a citizen long enough to confer birthright citizenship on her.

Mize is not her biological parent, so the State Department was unwilling to recognize birthright citizenship based on Mize’s natural-born citizenship status.

These rules have generated several lawsuits, and the State Department, while losing individual cases, has not modified its interpretation of the statute. Unsurprisingly, the Trump administration has filed appeals of prior cases and there is no definite appellate interpretation yet.

Mize and Gregg sued the State Department, claiming that the denial of the passport and citizenship declaration for their daughter violated their Fifth Amendment constitutional rights as well as the INA.

As the case proceeded, Simone acquired naturalized citizenship status through the citizenship Gregg eventually gained by his marriage to Mize. The couple now live in Georgia.

The State Department moved for summary judgment based on its longstanding interpretation of the INA, and it also suggested the case should be dismissed as moot since the child in time received a US passport as a naturalized citizen.

US District Judge Michael Brown rejected the notion that the case moot before to turning to its merits in his August 27 opinion. He wrote that the harm to their dignity the men suffered by having their marriage deemed irrelevant for purposes of their daughter’s citizenship status at birth kept this case from being moot.

On the merits, Brown pointed out that as a matter of constitutional law, under the Supreme Court’s 2015 marriage equality ruling in Obergefell v. Hodges and the subsequent Pavan v. Smith case in 2017 regarding the issuance of birth certificates in Arkansas, same-sex marriages are supposed to be treated the same as different-sex marriages for all purposes of law. If the INA were to be interpreted to treat the couple’s daughter as a child “of the marriage,” then there would be no requirement that the child be biologically related to both parents to be a birthright citizen.

Brown found that the INA does not define what a child “of the marriage” is, leaving an ambiguity because the statutory language can be interpreted in more than one way. If the language is interpreted as the State Department insists, he found that would raise constitutional issues under the Fifth Amendment. But federal courts apply a doctrine of “constitutional avoidance” under which they sidestep having to decide questions about the constitutionality of a law or its interpretation by the government if there is a reasonable way to interpret the law to make the constitutional issues go away.

Brown, in line with several prior district court decisions, concluded that such an interpretation is possible. The Mize-Gregg marriage is valid and must be recognized by the State Department, and the process by which Mize and Gregg decided to have a child through gestational surrogacy and carried out their plan supports the argument that Simone is a child “of” their marriage in a practical sense. So, he concluded, she was not born “out of wedlock,” and the requirement that she be biologically related to as US parent with sufficient duration of residency under the “out of wedlock” provision would not apply.

Brown granted summary judgment to Mize and Gregg as a matter of statutory interpretation, making it unnecessary for him to decide the constitutional questions, and he ordered the State Department to issue the documents for which the men had applied.

The State Department could appeal this ruling, which would be consistent with the Trump administration’s pronounced tendency to fall in line with efforts by Christian conservatives to chip away at the legal status of same-sex marriages. Unsurprisingly, the government filed an appeal of the Kiviti decision in the Fourth Circuit Court of Appeals on August 14 and it might well file an appeal here to “protect” its position about how to interpret the statute.

If Joe Biden is elected president, the State Department could decide to protect the rights of same-sex couples and their children by revising its interpretation of the INA on this point.

Immigration Equality and Lambda Legal are representing Mize and Gregg, as they are also representing the plaintiffs in the Kiviti case.