A federal judge in Maryland on Wednesday said the State Department must recognize the U.S. citizenship of a gay couple’s daughter who was born in Canada via surrogate.
U.S. District Judge Theodore D. Chuang ruled in favor of Roee Kiviti and Adiel Kiviti of Chevy Chase, Md., who were legally married in California in 2013. Their daughter, Kessem Kiviti, was born in February 2019.
A lawsuit the couple filed in the U.S. District Court of Maryland last September notes the Kivitis were both American citizens when their daughter was born. The lawsuit also notes Section 301(c) of the Immigration and Nationality Act states “a baby born abroad to married parents is a U.S. citizen at birth when both parents are U.S. citizens and one of them has resided in the United States at any point prior to the baby’s birth.”
Lambda Legal; Immigration Equality and Morgan Lewis, a private law firm, represent the Kivitis.
“We are tremendously relieved that the court recognized what we always knew: that our daughter was a U.S. citizen by birth,” said Roee and Adiel Kiviti in a statement that Lambda Legal and Immigration Equality released. “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.”
Lambda Legal Senior Staff Attorney Omar Gonzalez-Pagan, one of the lawyers who represents the Kivitis, in a statement noted the judge ruled in their favor two days after the U.S. Supreme Court issued its decision that said Title VII of the Civil Rights Act of 1964 bans employment discrimination based on sexual orientation and gender identity.
“After this week’s Supreme Court victory affirming that LGBT people cannot be carved out from laws prohibiting discrimination in employment, today’s victory confirms once again that married same-sex couples cannot be carved-out from laws tied to marriage, as is the Immigration and Nationality Act,” said Gonzalez-Pagan. “The Immigration and Nationality Act does not distinguish between the marital children of same-sex and different-sex couples. As the court noted, to do so would violate the clear terms of the law and raise grave constitutional concerns.”
“The law provides for the recognition of citizenship to the children born abroad of married couples who are U.S. citizens,” he added. “This provision applies equally to all couples regardless of whether the parents have a biological relationship with their children. It was callous and discriminatory for the State Department to refuse to recognize baby Kessem as the U.S. citizen she is. Today’s victory shows how unlawful the Department of State’s actions really were.”
An official with the State Department on Wednesday told the Washington Blade it is “aware of the court’s ruling and is reviewing the decision with the Department of Justice.”
“We have no further comment at this time,” said the official.