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Old 23 January 2018, 05:17 AM
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Default Lesbian couple sues for son's US citizenship

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A same-sex couple is suing the US government alleging discrimination because one of their children was not granted American citizenship.

US citizen Allison Blixt and her Italian wife Stefania Zaccari had two babies in London, England.

The spouses each carried one child to term using their own eggs and an unknown sperm donor.

American citizenship was granted to Ms Blixt's son, Massimiliano, but not to Ms Zaccari's boy, says the lawsuit.
Http://www.bbc.com/news/world-us-canada-42781501
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  #2  
Old 23 January 2018, 08:09 PM
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The lawsuit says that at the US consulate "Stefania and Allison were asked a series of invasive and legally irrelevant questions about how their children were conceived and born".
If they’re both on the birth certificate, it seems blatantly discriminatory and just plain mean to try and split the children up that way.

On another point, America’s immigration system is so chaotic right now it’s ridiculous. In California they’re mandating that illegal aliens who get a driver’s license be automatically registered to vote, but if you’re a gay citizen you can’t bring your legal child into the country with you.
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Old 23 January 2018, 08:41 PM
UrbanLegends101 UrbanLegends101 is offline
 
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Originally Posted by Little Pink Pill View Post
If they’re both on the birth certificate, it seems blatantly discriminatory and just plain mean to try and split the children up that way.


I don't think it is that simple. US law on citizenship for children born outside the United States to a US citizen gets a little complex, but essentially, since 1790, there have been two prerequisites for transmitting U.S. citizenship at birth to children born abroad:

(1) At least one biological parent must have been a U.S. citizen when the child was born. The only exception is for a posthumous child.

(2) The U.S. citizen parent(s) must have resided or been physically present in the United States for the time required by the law in effect when the child was born.


It appears in the case of the child born to the Italian spouse, the problem may be that neither of the biological parents is a US citizen, therefore the child is not a US citizen at birth. If the couple could prove the sperm donor was a qualifying US citizen (one meeting the physical presence requirements in the United States), then they might have grounds for the child to be a US citizen at birth.


This does not mean the family could not get an immigrant visa for the non-US citizen child, but what is seems to be is that the child will not be a US citizen at birth.

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Originally Posted by Little Pink Pill View Post
In California they’re mandating that illegal aliens who get a driver’s license be automatically registered to vote, but if you’re a gay citizen you can’t bring your legal child into the country with you.
My understanding of California's DMV voter registration program is that an illegal alien granted a California driver license is not registered to vote in most California elections. Under Federal law, a voter must be a US citizen to vote in Federal level elections.
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Old 23 January 2018, 08:54 PM
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This all seems to come from a very restrictive (twisted, even) reading of the word "parent" in the Immigration and Naturalization Act.

https://travel.state.gov/content/tra...cy-Abroad.html

It looks like it applies equally to straight couples using assisted reproduction, but I wonder if they are routinely asked?

Regardless, it is bizarre to me that citizenship would have anything to do with whether the child has a biological connection to the parent(s), vs whether a US citizen was legally the parent of the child at its birth.

ETA: UrbanLegends101, I think that summary of the law is not accurate. There has long been a distinction between the requirements when a child is born in or out of wedlock. When the parents are unmarried, it is the biological/genetic father whose citizenship is considered. Alternatively, the child acquires the citizenship of the mother.

When the parents are married, the law refers only to the child being born to one or more US citizen parents. The State Department has decided to construe that as meaning biological parent, or parent having a "biological connection." That is not what the statute says.

Last edited by erwins; 23 January 2018 at 09:03 PM.
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  #5  
Old 24 January 2018, 01:17 AM
UrbanLegends101 UrbanLegends101 is offline
 
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Originally Posted by erwins View Post
This all seems to come from a very restrictive (twisted, even) reading of the word "parent" in the Immigration and Naturalization Act.

https://travel.state.gov/content/tra...cy-Abroad.html

It looks like it applies equally to straight couples using assisted reproduction, but I wonder if they are routinely asked?

Regardless, it is bizarre to me that citizenship would have anything to do with whether the child has a biological connection to the parent(s), vs whether a US citizen was legally the parent of the child at its birth.

Understand, and in the text of the INA of 1952, I do not find the use of the specific phrase "biological connection" although in the definitions, the INA gets quirky about defining father, mother or parent.

(1) The term "child" means an unmarried person under twenty-one
years of age who is—
(A) a legitimate child; or
(B) a stepchild, provided the child had not reached the age of
eighteen years at the time the marriage creating the status of
stepchild occurred; or
(C) a child legitimated under the law of the child's residence
or domicile, or under the law of the father's residence or domicile,
whether in or outside the United States, if such legitimation takes
place before the child reaches the age of eighteen years and the
child is in the legal custody of the legitimating parent or parents
at the time of such legitimation.

(2) The terms "parent", "father", or "mother" mean a parent,
father, or mother only where the relationship exists by reason of any
of the circumstances set forth in (1) above.

Also, bear in mind that this is in regards to a child born outside the United States gaining US citizenship at birth.






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Originally Posted by erwins View Post
ETA: UrbanLegends101, I think that summary of the law is not accurate. There has long been a distinction between the requirements when a child is born in or out of wedlock. When the parents are unmarried, it is the biological/genetic father whose citizenship is considered. Alternatively, the child acquires the citizenship of the mother.
What I understand in regards the differences between in and out of wedlock are detailed in the Foreign Affairs Manual, 7 FAM 1130, starting with 7 FAM 1133.4-5(B) particularly 7 FAM 1133.4-5(C)(1) with the father being the US citizen and (C)(2) and (C)(3) for the mother being the US citizen, if the parents are not married.

I would suggest if either the father or the mother is a US citizen at the time of the birth of the child outside the United States, for the purposes of US law, if the parent qualifies to transmit US citizenship to the child, the child is a US citizen at birth.



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Originally Posted by erwins View Post
When the parents are married, the law refers only to the child being born to one or more US citizen parents. The State Department has decided to construe that as meaning biological parent, or parent having a "biological connection." That is not what the statute says.
There are differences for a child born outside the United States being a US citizen at birth, if only one parent is a US citizen or both parents are US citizens. If both parents are US citizens at the time of birth outside the United States and one or both have ever been in the United States, that physical presence satisfies the statutory requirement found in 8 USC 1401(c).

(Yes I know 8 USC 1401(c) actually uses the phrase "a person born outside of the United States and its outlying possessions of parents both of whom are citizens of the United States and one of whom has had a residence in the United States or one of its outlying possessions, prior to the birth of such person;" certainly one would not think that if both parents have ever been in the United States, the child is not a US citizen at birth.)

If only one parent is a US citizen and they are married, it appears 8 USC 1401(g) governs and there are more specific physical presence requirements detailed.

7 FAM 1130 is an interesting read and is the guidance used by the counselor officers in determining if a child born outside the United States gains US citizenship at birth.

If this case rules that the child of the Italian mother is a US citizen at birth, looks like State Department will have to adjust 7 FAM 1130 for that ruling.

Last edited by UrbanLegends101; 24 January 2018 at 01:32 AM. Reason: A few words here and there
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  #6  
Old 24 January 2018, 01:18 AM
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Originally Posted by UrbanLegends101 View Post
This does not mean the family could not get an immigrant visa for the non-US citizen child, but what is seems to be is that the child will not be a US citizen at birth.
I was wondering at first if the one parent could legally adopt the child (even though it's kind of silly that she should have to) in order to get the child US citizenship. But I realized that would have the same issue; the child would presumably be considered an "immigrant" rather than a US citizen by birth.

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Originally Posted by erwins View Post
Regardless, it is bizarre to me that citizenship would have anything to do with whether the child has a biological connection to the parent(s), vs whether a US citizen was legally the parent of the child at its birth.
And if a biological connection to the parent is required, would a heterosexual couple have the same issue? Like if a US citizen man married to a non citizen woman living overseas was unable to conceive due to low sperm count or whatever, and chose to use donated sperm. It seems like they'd technically have the same problem.
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Old 24 January 2018, 01:30 AM
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Originally Posted by WildaBeast View Post
I was wondering at first if the one parent could legally adopt the child (even though it's kind of silly that she should have to) in order to get the child US citizenship. But I realized that would have the same issue; the child would presumably be considered an "immigrant" rather than a US citizen by birth.

I would prefer the term naturalized US citizen.

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Originally Posted by WildaBeast View Post
And if a biological connection to the parent is required, would a heterosexual couple have the same issue? Like if a US citizen man married to a non citizen woman living overseas was unable to conceive due to low sperm count or whatever, and chose to use donated sperm. It seems like they'd technically have the same problem.

Yes, it does appear so. See 7 FAM 1131.4-1 Establishing Blood Relationship.

From that section of the FAM:

Children born in wedlock are generally presumed to be the issue of that marriage. This presumption is not determinative in citizenship cases, however, because an actual biological relationship to a U.S. citizen parent is required. If doubt arises that the U.S. citizen "parent" is biologically related to the child, the consular officer is expected to investigate carefully. Circumstances that might give rise to such a doubt include, but are not limited to: (and the list continues).

Also see: (7 FAM 1100 Appendix D provides guidance about acquisition of U.S. citizenship by birth abroad and assisted reproductive technology.)

DNA testing can be required if there are concerns.


I suppose it is up to the gut feeling of the consular officer interviewing the parents. I know when my son was born over 20 years ago, outside the United States, the application for the Consular Report of Birth Abroad was rather straight forward. No questions asked.

One other issue in this that we have in this is whether or not US citizenship at birth is the main concern. Generally, I would think this to be limited to the possibility the child might run for POTUS or VPOTUS.

Another point is that US citizens at birth generally cannot be deported for cause, while naturalized US citizens can be deported. This could be of some concern, I suppose.
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Old 24 January 2018, 02:47 AM
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Originally Posted by erwins View Post
This all seems to come from a very restrictive (twisted, even) reading of the word "parent" in the Immigration and Naturalization Act.
Also, I was wondering where the 'since 1790' came from since this is almost entirely 20th century law. (In 1790 you could get such rights if you were white, not a slave, etc etc... I think it wasn't even until 1934 that mothers abroad could transfer their citizenship automatically.)
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Originally Posted by UrbanLegends101 View Post
I would suggest if either the father or the mother is a US citizen at the time of the birth of the child outside the United States, for the purposes of US law, if the parent qualifies to transmit US citizenship to the child, the child is a US citizen at birth.
Yes, that is the law, not a suggestion of the law.
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  #9  
Old 24 January 2018, 03:13 AM
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Originally Posted by erwins View Post
It looks like it applies equally to straight couples using assisted reproduction, but I wonder if they are routinely asked?
That’s a good question. My kids were born overseas and no one at the consulate asked me if I was a surrogate.
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My understanding of California's DMV voter registration program is that an illegal alien granted a California driver license is not registered to vote in most California elections.
I fell prey to legitimately fake news. The shame. It burns.
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  #10  
Old 24 January 2018, 03:30 AM
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Also, I was wondering where the 'since 1790' came from since this is almost entirely 20th century law. (In 1790 you could get such rights if you were white, not a slave, etc etc... )
The 1790 line is from 7 FAM 1131.2 Prerequisites for Transmitting U.S. Citizenship.

I believe it dates back to the Naturalization Act of 1790, which provided for citizenship for the children of U.S. citizens born abroad, stating that such children "shall be considered as natural born citizens," the only US statute ever to use the term. It specified that the right of citizenship did "not descend to persons whose fathers have never been resident in the United States.




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I think it wasn't even until 1934 that mothers abroad could transfer their citizenship automatically.)Yes, that is the law, not a suggestion of the law.
Yes, May 24, 1934.
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  #11  
Old 24 January 2018, 03:35 AM
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Originally Posted by UrbanLegends101 View Post
I believe it dates back to the Naturalization Act of 1790, [...] It specified that the right of citizenship did "not descend to persons whose fathers have never been resident in the United States.
Exactly. So, no, not at all "since 1790, there have been two prerequisites".
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Old 24 January 2018, 03:44 AM
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Exactly. So, no, not at all "since 1790, there have been two prerequisites".
Guess the State Department and their legal counsel disagree.

7 FAM 1131.2:

Since 1790, there have been two prerequisites for transmitting U.S. citizenship at birth to children born abroad:

(1) At least one biological parent must have been a U.S. citizen when the child was born. The only exception is for a posthumous child.

(2) The U.S. citizen parent(s) must have resided or been physically present in the United States for the time required by the law in effect when the child was born.

As I understand it, for a child born outside the United States to be a US citizen at birth, the child must be the child of a qualifying US citizen parent and that US citizen parent must meet the physical presence in the United States requirement in effect at the time of the birth.

If neither parent is a US citizen, a child born to those parents outside the United States cannot be a US citizen at birth.

The physical presence in the United States requirements have changed over the years, but apparently has always been part of US law since 1790.

Other than the posthumous child exemption has there been a time when these two prerequisites have not been part of US law?

You could be right, but I've not read where that has happened.
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Old 24 January 2018, 04:26 AM
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The definition of "since" perhaps is the problem. I wouldn't use it in that sense. It doesn't make any.
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Old 24 January 2018, 04:48 AM
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Originally Posted by UrbanLegends101 View Post

If this case rules that the child of the Italian mother is a US citizen at birth, looks like State Department will have to adjust 7 FAM 1130 for that ruling.
They are both the mothers of both children. The children are each the child of each mother.

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Originally Posted by UrbanLegends101 View Post
Guess the State Department and their legal counsel disagree.

7 FAM 1131.2:

Since 1790, there have been two prerequisites for transmitting U.S. citizenship at birth to children born abroad:

(1) At least one biological parent must have been a U.S. citizen when the child was born. The only exception is for a posthumous child.
It has not been a requirement since 1790 that a "biological parent" must be a US citizen. A child born in wedlock was presumptively the child of the couple, and there was no such thing as DNA testing. It would have been about legal parentage. And there would have been no concept at all of a child not being the child of its mother. There most certainly would have been many children whose birthright citizenship was recognized who were the legal child of a US citizen father, but not biologically related to a US citizen.
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Old 24 January 2018, 06:22 AM
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There is another case, this one with a male gay couple who both fathered children with eggs from the same donor and the same surrogate mother carrying them simultaniously. One of the twins is a US citicen, the other one is not.

The fathers are fighting that decision, apparently with the same lawyers that represent the mothers in the OP case.

https://www.theguardian.com/world/20...discrimination
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Old 24 January 2018, 08:42 AM
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Originally Posted by UrbanLegends101 View Post
Since 1790, there have been two prerequisites for transmitting U.S. citizenship at birth to children born abroad:

(1) At least one biological parent must have been a U.S. citizen when the child was born. The only exception is for a posthumous child.

(2) The U.S. citizen parent(s) must have resided or been physically present in the United States for the time required by the law in effect when the child was born.
Hey, that's interesting. I'm the Australian mother of an Australian baby, conceived and born in Australia, to sperm from an anonymous donor somewhere in the US. I had thought that not having the donor on the birth certificate would rule out any form of US citizenship, but the quote you gave and the official website both speak of biology/genetic parenthood rather than birth certificate parenthood.

So my kid might actually be a US citizen without knowing it?
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Old 24 January 2018, 11:23 AM
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Wow. They really are good swimmers.
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Old 24 January 2018, 01:25 PM
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Originally Posted by ganzfeld View Post
The definition of "since" perhaps is the problem. I wouldn't use it in that sense. It doesn't make any.
Perhaps, but that is the quote from the Foreign Affairs Manual. That language has been in the FAM for years.


Just curious, how would you rewrite:

Since 1790, there have been two prerequisites for transmitting U.S. citizenship at birth to children born abroad?
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Old 24 January 2018, 01:34 PM
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"There are two prerequisites. . . "

ETA: How long the prerequisites have been in place isn't even relevant, as far as I can see.
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Old 24 January 2018, 01:35 PM
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They are both the mothers of both children. The children are each the child of each mother.
Correct. What I think is the sticking point with the State Department is in the case of the Italian mother, the mother is not a US citizen, therefore the mother cannot transmit US citizenship to the child at birth. If it could be determined the sperm donor father is a US citizen, there could be a change State Department could take that into consideration.

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Originally Posted by erwins View Post
It has not been a requirement since 1790 that a "biological parent" must be a US citizen. A child born in wedlock was presumptively the child of the couple, and there was no such thing as DNA testing. It would have been about legal parentage. And there would have been no concept at all of a child not being the child of its mother. There most certainly would have been many children whose birthright citizenship was recognized who were the legal child of a US citizen father, but not biologically related to a US citizen.
Agreed, because as you point out, DNA is a relatively recent medical screening practice. Some things, as paternity, have simply been accepted.

Now that we do have DNA screening capabilities, State Department appears to have legal authority to require DNA evidence to determine paternity in these cases, if the consular officer requests it.


I will also agree with you that the system has not been foolproof, especially prior to DNA testing. No doubt there has been a birth abroad and the child considered a US citizen at birth when neither biological parent was a US citizen and the consular officers of that day and time simply used the best judgement they could use.

As I mentioned, I do believe that if this couple prevails, it would, no doubt, change the criteria used in determining US citizenship at birth status for couples in these situations.
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