Securing Citizenship for Children of Same-Sex Parents

Thursday, February 2, 2023

FamilyA Morgan Lewis team won a pair of critical court rulings validating the US citizenship of children born abroad to married same-sex couples. The rulings have helped the couples and their children enjoy the same rights as other citizens, giving them peace of mind and the assurance that they can remain together as a family in the United States.

In each case, the child was born to a surrogate mother outside of the country and was biologically related to one of their two fathers, both of whom were US citizens. However, the US Department of State denied passports to both newborns, contending they were born “out of wedlock,” under the theory that a child must have a biological relationship with both married parents to secure automatic birthright citizenship. This theory excludes all children of same-sex couples unless they meet the heightened citizenship standards that apply to children born to unmarried couples.

In both Kiviti v. Pompeo and Mize v. Pompeo, our team worked with nonprofit organizations Lambda Legal and Immigration Equality to secure federal court rulings requiring the US government to recognize the children’s citizenship and issue passports to the youngsters. Under the Acting Solicitor General’s direction, the US Department of Justice withdrew the appeal of the Kiviti case that was already pending before the Fourth Circuit and let its deadline to appeal the Mize case to the Eleventh Circuit pass without filing anything. As a result, both children have definitive rulings that they are US citizens and newly issued US passports.

Due in part to our efforts, the US Department of State later reversed the policy that denied citizenship to some babies born abroad to same-sex parents, effectively guaranteeing that US and binational couples who use assisted reproductive technology to give birth overseas—such as surrogacy or sperm donation—can pass along citizenship to their children. 

To read more about this matter, see reporting in Law360, Washington Blade, Advocate, Above the Law, and CNN.