Metro Weekly

State Department drops opposition to recognizing gay couples’ children as U.S. citizens

Government had refused to automatically recognize the citizenship of children of married gay couples born abroad via surrogacy

Adiel and Roee Kiviti and their children, Kessem and Lev – Photo: Lambda Legal.

The U.S. State Department has dropped its opposition to recognizing the daughters of two same-sex couples who were born abroad via surrogacy as U.S. citizens.

The State Department withdrew its appeal of a lower court decision in Maryland that recognized the U.S. citizenship of Kessem Kiviti, the daughter of Roee and Adiel Kiviti, who was born in Canada in 2016. The State Department also declined to appeal a similar decision out of Georgia involving Simone Mize-Gregg, the daughter of Derek Mize and Jonathan Gregg, who was born abroad in England in 2018.

Under the Immigration and Nationality Act of 1965, children of married U.S. citizens who are born abroad are supposed to be considered U.S. citizens from birth, as long as one of their parents has lived in the U.S. at some point. But the Trump administration has previously balked at recognizing the children of married same-sex couples as U.S. citizens, instead treating them as born “out of wedlock.”

As a result, same-sex parents were forced to meet a higher standard, proving a biological connection to a U.S. citizen parent who had lived in the United States for at least five years. But married heterosexual couples who conceive via surrogacy and whose children are born abroad are not required to “prove” a biological relationship, prompting LGBTQ advocates to call the State Department policy discriminatory.

Simone Mize-Gregg, with her parents Derek Mize and Jonathan Gregg – Photo: Lambda Legal.

“Every court to have looked at this issue has concluded that the Department of State cannot refuse to recognize the U.S. citizenship of children born abroad to married same-sex couples,” Omar Gonzalez-Pagan, a senior attorney at Lambda Legal representing the families, said in a statement. “We are gratified that the victories of the Kiviti and Mize-Gregg families are now final and we hope that the Trump Administration and the State Department will abide by these courts’ decisions when it encounters other families headed by same-sex couples. No family should have to go through what the Kiviti and Mize-Gregg families endured.”

“The State Department’s policy has been wrong for years,” Aaron C. Morris, the executive director of Immigration Equality, co-counsel for the couples, said in a statement. “While the government continues to argue that their position is required by the law, federal courts keep ruling that their position is contrary to the law. These two cases are two more reasons why the state department should change its discriminatory policy and stop hurting families. We are elated that the Kiviti and Mize-Gregg families finally have the justice they deserve.”

The families each issued their own statements praising the court’s decision. 

“We are very relieved, on behalf of our daughter, on behalf of our family, and on behalf of LGBT families across this great country of ours,” Roee Kiviti said in a statement. “The law was always clear. We knew it, the courts knew it, and now the State Department knows it, too.”

“This was never just about us. It was always about standing up for what’s right,” Adiel Kiviti added. “We are grateful to those who did it before us, and we are humbled to be a part of the ongoing struggle for justice.”

“We are extremely grateful that this fight is over and won,” Derek Mize and Jonathan Gregg said in a joint statement. “All we ever wanted was for Simone to be treated fairly. This process has reaffirmed for us that standing up for equal treatment is always right, no matter how difficult it is or long it may take.”

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