As you are no doubt aware, same-sex couples cannot conceive children the same way opposite-sex couples can. While many choose to adopt, others choose to make what my husband and I call Science Babies. For male* couples, this usually involves one partner’s sperm and a surrogate; for female* couples, one provides the egg (and often womb), and then there is a sperm donor.
In a small but nasty administrative decision, the Pence wing of the administration has combined forces with the Trump wing to begin challenging birthright citizenship for gay couples who have Science Babies overseas:
Last summer, the State Department issued new rules unilaterally changing the department’s interpretation of the Immigration and Nationality Act (INA), a 1952 law that, along with the 14th Amendment, codifies eligibility for U.S. birthright citizenship.
“The U.S. Department of State interprets the INA to mean that a child born abroad must be biologically related to a U.S. citizen parent,” the State Department’s website says. “Even if local law recognizes a surrogacy agreement and finds that U.S. parents are the legal parents of a child conceived and born abroad… if the child does not have a biological connection to a U.S. citizen parent, the child will not be a U.S. citizen at birth.”
Under the policy[…] children born via gestational surrogacy and other forms of assisted reproductive technology (ART) are considered to be born “out of wedlock,” in the State Department’s words—even if their parents, like Roee and Adiel, are legally married.
I’m sure you’ll be shocked to learn that these new rules only seem to apply to children born to same-sex couples.
For parents of non-traditional families, the policy change has been a disaster, leaving them to navigate the labyrinthine immigration legal system with little guidance from the State Department and, at the moment, little recourse for appeal. Children of U.S. citizens are put at risk of deportation or even statelessness—despite no textual legal basis for the policy.
[…]“Assumption of parentage,” as the State Department calls it, now seems to LGBT parents to be reserved solely for heterosexual married couples.
Indeed, friends of ours recently had a Science Baby who was born in Thailand, and they had to jump through a number of hoops, including several genetic tests, to get the kid a passport. The whole article shows just how much of a mess the administrative state is for same-sex couples right now. The pretzels we had to twist ourselves into pre-Obergefell and Windsor have ramifications that will echo through our lives until this is cleaned up by actual laws. Which will not happen any time soon. In the meantime, administrations which decide that they can reinterpret the law to their liking, since nobody is likely to stop them, will do so.
What’s most galling for me is that this is not a large number of people. Many of these people are servicemembers. There is no legitimate reason to do this. I can’t even imagine what they’ll cook up in court to make it seem like there is. In the Trump era, they don’t even have the goddamn courtesy to give us a pretext any more.