According to U.S. law, children born outside the U.S. are automatically granted U.S. citizenship at birth if their parents are married and at least one is a U.S. citizen.  However, the Trump Administration enacted a policy change in 2018 in an effort to block that right to children of married LGBTQ couples.  The policy change to the Immigration and Nationality Act states that even if the parents are legally married, children carried by gestational surrogates may be considered “born out of wedlock” by the State Department. 

That’s what happened to Roee and Adiel Kiviti. Both are naturalized U.S. citizens who were born in Israel.  Both their children were born in Canada using an egg donor and a gestational surrogate. When their son Lev was born in 2016, he was automatically granted U.S. citizenship.  But in 2019, under the Trump Administration’s new discriminatory policy, their daughter Kessem’s U.S. citizenship was denied. 

The State Department refused to recognize Kessem as a citizen because their policy considered her “born out of wedlock.”  Under the new policy, she was required to have a biological link to a U.S. citizen who had resided in the U.S. for at least five years. Kessem’s biological relationship is to Adiel.  When Kessem was born, Adiel was just a few months short of that residency requirement. 

As Time and other news outlets reported, U.S. District Judge Theodore Chuang rejected the State Department’s position that Kessem was born out of wedlock because one of her married parents is not her biological parent.

In a statement released by Immigration Equality and Lambda Legal, Kessem’s parents, Roee and Adiel Kiviti said, “We are tremendously relieved that the court recognized what we always knew: that our daughter was a U.S. citizen by birth. We are proud we taught our little girl to stand up for what’s right even before she could crawl. No child should be denied her rights because her parents are LGBT, and no family should have to endure the indignity we did.”

“This is a huge victory for the Kiviti family,” said Aaron C. Morris, Executive Director of Immigration Equality. “Yet another federal court agrees with us that a biological connection is not required for married U.S. citizen parents to pass on citizenship to their children. This just makes sense. It’s love that makes a family, not biology. We will continue to fight this battle until the State Department ends its discriminatory policy.”

This is one of at least five cases to challenge how the State Department has applied its policy to same-sex parents.