Who's Your Daddy? Genetic Citizenship, Presumptive Paternity, and the Dvash-Banks Twins

by Diane Klein

In our increasingly digital, interconnected world, lines on maps seem in some ways more artificial than ever.  Advances in both transportation and communication technologies mean that where a person is physically located matters perhaps less than it ever has.  Advances in reproductive technology and in the recognition of a wider variety of families mean that traditional notions of parenthood and "blood relation" may also matter less than ever.  But exactly where on planet Earth one happened to make one's entrance, along with the citizenship of one's parents (whatever their gender or sexual orientation), still matters - and maybe almost as much as it ever has.

The case of the Dvash-Banks twins - one a U.S. citizen, one not - is illustrative.  No, the birth mother did not give birth to one twin, run across the border, and give birth to the other.  Their seemingly-impossible-but-all-too-real situation is this: Their parents, Andrew and Elad Devash-Banks, are a same-sex married couple.  Andrew is a U.S. citizen; Elad is an Israeli with lawful permanent resident status in the U.S.  The couple were married in Canada in 2011, and were living there when they hired the services of a Canadian egg donor and gestational surrogate (sometimes called a "surrogate mother").  She conceived and carried to term two boys: one whose genetic father is Andrew; one whose genetic father is Elad.  Both men's names appear on both babies' birth certificates. The couple and the two boys (who appear to be about 10 months old) have moved back to California, Andrew's birthplace.

If you follow immigration law at all, you can guess the rest.

The child conceived using Andrew's sperm has a U.S. citizen parent, and thus qualifies for U.S. citizenship (just like Ted Cruz did, when he too was born in Canada to a U.S. citizen).  A person qualifies for U.S. citizenship if "one parent is a U.S. citizen at the time of birth" and "at least one parent lived in the U.S. or its territories prior to the birth" (that's Andrew).  But (thanks to the State Department's insistence on a DNA test - whose outcome was a foregone conclusion) the child conceived using Elad's sperm does not qualify this way.  Like the man whose sperm was used to conceive him, the child is eligible for a green card.  But he is not a U.S. citizen.  The woman who delivered him is Canadian; the man whose sperm was used is Israeli.  No U.S. citizen parent = no U.S. citizenship.  Simple.  Right?  Well, not so simple.

Because in this case, the non-citizen parent has a U.S. citizen spouse - again, like Rafael Cruz and Eleanor Darragh, Ted Cruz's parents.  So why doesn't Andrew's citizenship apply to his husband Elad's genetic child, like Eleanor's U.S. citizenship applied to her Cuban husband Rafael's child, little Ted?  Andrew and Elad are married - and Obergefell v. Hodges entitles them to all the legal rights attaching to that status.  But vindicating those rights is the trickier part, likely headed for litigation unless the U.S. State Department changes its mind, or Andrew adopts the other child and applies for citizenship for him.

The connection between marital status and presumed paternity goes back a long, long way.  Lord Coke's First Institute, published in 1628, set out the first formulation of the common law conclusive presumption of marital paternity, referred to as the "Four Seas Rule": "if the husband be within the four seas, that is, within the jurisdiction of the King of England, if the wife have issue, no proof is to be admitted to prove the child a bastard." This rule was emphatically not gender-neutral.  The woman who gave birth to a baby was its mother.  Paternity, by its nature, seemed unknown and unknowable - but (almost) no evidence contradicting the paternity of her husband was allowed.

Well before Lord Coke, in a world in which DNA and genetic testing were as-yet undreamt of, the seemingly inherent uncertainty of paternity made it a source of constant anxiety around identity.  As Samuel Butler's translation of The Odyssey has Telemachus tell Athena, "My mother tells me I am son to Odysseus, but it is a wise child that knows his own father." The saying had become so well known by Shakespeare's time that he could jokingly reverse it.  In Act II, Scene 2 of The Merchant of Venice, the "merry devil" Launcelot Gobbo remarks to his own aged and blind father, "It is a wise father that knows his own child."  When Old Gobbo denies it, Launcelot's rejoinder is: "I know not what I shall of that: but I am Launcelot...and I am sure Margery your wife is my mother."

Plainly, in the Stuart period, as in Homeric Greece or Renaissance Venice, the conclusive legal presumption of husband paternity often flew in the face of the facts (consider the married soldier or sailor who was far away throughout the relevant time).  But as such presumptions often do, it reflected a policy choice - here, in favor of legitimacy.  Legal paternity is not now, and never has been, perfectly co-extensive with biological paternity.

Almost four hundred years later, California Family Code Section 7611 is strikingly similar to Coke's formulation: The presumption arises if "a man....and the child's natural mother are or have been married to each other, and the child is born during the marriage, or within 300 days after the marriage is terminated."  But policy and science have both moved forward, and today, in California as in most states, the presumption of paternity is rebuttable.  In a further twist neither Homer, Shakespeare, nor Lord Coke would ever have imagined,  California law also holds open the possibility that "a court may find that more than two persons with a claim to parentage...are parents if the court finds that recognizing only two parents would be detrimental to the child."

Putting the presumption together with same-sex marriage and assisted reproductive technology (ART) of various kinds obviously complicates matters somewhat further. But if we keep in mind that presumed parenthood is a policy choice and a legal status, not a biological claim, it gets a little simpler.

If both spouses are women, the presumption of parenthood (rather than paternity) seems a relatively straightforward extension of the law.  Section 7611(a) could easily be amended (or simply read, in the aftermath of Obergefell), to state, "A person is presumed to be the natural parent of a child if....(a) The presumed parent and the child's natural mother are or have been married..."  In order to insure gender neutrality (or gender or sex non-discrimination, if we prefer), a pair of married men must be extended the same benefit; thus, "A person is presumed to be the natural parent of a child if...(a) The presumed parent and the child's other natural parent are or have been married..."  Should California law be read this way (and there is good reason to think it would be), Andrew Dvash-Banks (U.S. citizen) would be the presumed parent of his spouse Elad's "natural" (sic) (genetic) child. (Whether the egg donor/gestational surrogate would also be considered a parent is not relevant here, though California law theoretically permits it.)

Thus, should the State Department elect to defer to California law (the citizen parent's state of domicile) on the question of parenthood, rather than confine itself to the binary choice of DNA or legal adoption, the second son should be as entitled to citizenship as the first.  (Although some have suggested Andrew might apply for citizenship for his husband's genetic child as a stepchild, citizenship is not available this way.  Only adoption would suffice - presenting the strange spectacle of Andrew having to adopt a child despite Andrew's name already appearing on the child's birth certificate.)  But such deference is not necessary to this result.

And this is where Pavan v. Smith, the Arkansas birth certificate case decided earlier this summer, comes in.  In Pavan, the United States Supreme Court held that Obergefell's guarantee that same-sex couples have access to marriage "on the same terms and conditions as opposite-sex couples" required that if Arkansas included the male spouse of a married woman on her child's birth certificate, the state could not refuse to affix the name of her female spouse.  If the child was conceived using ART, Arkansas law actually requires using the name of the spouse, not the sperm donor.  Other provisions prescribe reissuance of birth certificates after adoption, demonstrating clearly that Arkansas birth certificate rules focus on the marital and legal status of parents and children, not (exclusively) biological connection.  These ART and adoption provisions are the ones Justice Gorsuch, in dissent, either ignores or misinterprets, when he describes Arkansas birth certificate laws as "a set of rules designed to insure that the biological parents of a child are listed on the child's birth certificate," and calling the laws a "biology based birth registration regime."  Six Justices were not beguiled: they saw clearly that Arkansas law treated same-sex married couples differently than opposite-sex married couples in birth certificate policies, and struck the law down: "Obergefell proscribes such disparate treatment."

If we look at the USCIS Policy Manual, we find the same apparent emphasis on biology, coupled with rule-swallowing exceptions for adoption and ART, that typify state law.  The relevant portion of the Policy Manual, "Children Born Abroad through Assisted Reproductive Technology," permits a U.S. citizen gestational mother (a U.S. citizen mother who uses a non-citizen egg donor but gestates the child herself) to (in the Policy Manual's words) "transmit" citizenship to her non-genetically-related child. A footnote to this section states, "Previously, a genetic relationship with a U.S. citizen parent was required in order for a child born abroad to acquire U.S. citizenship through that parent."  Except that right there above the part about ART is the part called "Adopted Child."  So it is simply not the case (and never has been), that only a genetic link can "transmit" citizenship.  Just as with Arkansas birth certificates, the right sort of legal link can as well.

The Pavan Court recognized that inclusion on the birth certificate of the child of one's spouse is one of the "constellation of benefits that the States have linked to marriage."  How much more so the power to confer U.S. citizenship upon the child of a non-citizen, simply by being married to that non-citizen?  Put another way, had Andrew Dvash-Banks been married to the Canadian egg donor/gestational surrogate (without being the sperm donor himself), his presumptive paternity of the resulting child would have been sufficient to entitle that child to citizenship.  His marriage to the father/sperm donor Elad must therefore, under Obergefell and Pavan, have the same effect.

UPDATE:  On February 21, 2019, Bush appointee Judge John F. Walter of the Central District of California found for the Dvash-Banks.

(A final aside: Andrew Dvash-Banks conceded that "they didn't know about the law when they had their boys." Why not?  If their surrogacy arrangement involved a lawyer, one can't help but wonder why counsel did not adequately research and address - or at the very least raise! - the possibility of citizenship-related complications following this method of family creation.  Competent U.S. counsel working with same-sex couples using ART certainly regard themselves as duty-bound to explore the legal aspects of parental relationships, even in a post-Obergefell environment.  Having the surrogate deliver in the U.S. would almost certainly have been cheaper than a trip to the U.S. Supreme Court!)