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Two Lawsuits Challenge State Department’s Refusal to Recognize Same-Sex Marriages

Posted on: January 25th, 2018 by Art Leonard No Comments

 

Immigration Equality and cooperating attorneys from Sullivan & Cromwell LLP have filed two lawsuits against the U.S. State Department, challenging the Department’s refusal to recognize the birthright citizenship of two youngsters who are children of dual-nation married same-sex couples. The complicated cases turn on interpretation of a federal statute, Section 301(g) of the Immigration and Nationality Act (referred to as the INA), which establishes the citizenship status of persons born abroad to married U.S. citizens.  Blixt v. U.S. Department of State, Case 1:18-cv-00124 (D.D.C., filed Jan. 22, 2018); Dvash-Banks v. U.S. Department of State, Case 2:18-cv-00523 (C.D. Cal., filed Jan. 22, 2018).

The Constitution provides in the 14th Amendment that every person born in the United States is a citizen of the U.S.A. and of the state in which they were born. In the INA, Congress addressed the question whether people born overseas would also be treated as citizens if their parents are U.S. citizens.  The statute provides that a person born abroad will be treated as a U.S. citizen at birth if at least one of the person’s married parents is a U.S. citizen, and  as long as the U.S. citizen parent had been “physically present” in the U.S. for at least 5 years after their 14th birthday.

One of the lawsuits, filed in a U.S. District Court in the Central District of California (whose main courthouse is in Los Angeles), concerns Andrew Mason Dvash-Banks and Elad Dvash-Banks, a married couple, and their twin children, Ethan and Aiden. Andrew is a U.S. citizen, born in California in 1981, who lived continuously in the U.S. until 2005, when he moved to Israel and subsequently enrolled in a graduate program at Tel Aviv University.  There he met Elad Dvash in 2008.  Elad was born in Israel in 1985 and had lived there his entire life before meeting Andrew.  The two men went to Toronto, Canada, and were married there in a civil ceremony on August 19, 2010.

An act of the Canadian parliament, responding to rulings by various Canadian courts, established same-sex marriage in that country several years earlier. After marrying, Andrew and Elad moved to California, where they decided to raise a family. Because the federal Defense of Marriage Act precluded any recognition of their marriage by the U.S. government, Elad could not obtain permanent residence in the U.S. as Andrew’s legally recognized spouse, so they decided to move back to Toronto, where they could live together as a legally recognized married couple and start their family.

They decided to have twins using one surrogate who carried two embryos through to delivery of their sons. Each of the men is the biological father of one of the twins, who were born in Ontario in September, 2016.  Their Canadian birth certificates list both men as the fathers of each of the children, Ethan and Aidan.  The U.S. Defense of Marriage Act was declared unconstitutional by the Supreme Court in 2013, so at the time the twins were born there was no legal impediment to their Canadian marriage being recognized by the U.S. government in the same way any other legally valid marriage between a U.S. citizen and a non-citizen conducted abroad would normally be recognized.

After the children were born, their parents took them to the U.S. Consulate in Toronto to apply for their “Consular Reports of Birth Abroad” and to obtain U.S. passports for them. Because Andrew is a U.S. citizen and the children were born in 2016 within his legal marriage to Elad, he contends, both boys are entitled under Section 301(g) to be treated as U.S. citizens at birth.  But the officials with whom they dealt in Toronto didn’t see things that way.  They insisted that only Aiden, who was conceived using Andrew’s sperm, would be considered a U.S. citizen.  Ethan, who was conceived using Elad’s sperm, would not, because as far as the State Department was concerned, he had no genetic tie to a U.S. citizen, which the State Department decided was necessary for him to be treated as a U.S. citizen, relying on a different section of the law dealing with children born outside the United States out of wedlock.

In effect, the State Department was treating the marriage of Andrew and Elad as having no legal significance in determining Ethan’s citizenship.

This appears, on its face, inconsistent with the Supreme Court’s decisions in Obergefell v. Hodges (2015) and Pavan v. Smith (2017), which make clear that same-sex marriages are to be treated the same as different-sex marriages for all purposes of U.S. law. It also seems inconsistent with U.S. v. Windsor, which ruled that the U.S. government is required to recognize lawfully contracted same-sex marriages.

The other lawsuit, filed in Washington, D.C., presents a variation on the same story, involving Allison Dawn Blixt, who was born and raised in the United States, and her Italian wife, Stefania Zaccari, and their two sons, Lucas and Massi.

Alison lived in the U.S. continuously from her birth until 2008. She is a lawyer who began practicing at a law firm in New York beginning in 2005.  Stefania, born in Italy, met Allison in 2006 when Stefania was visiting New York on vacation.  After Stefania returned home, the women’s relationship continued at a distance.  Wanting to live together as a married couple, they moved to London, where Allison worked in the London office of her law firm and Stefania could freely relocate from Italy because of the freedom of movement within the European Union.  The women entered a civil partnership in England in 2009.  After the U.K. legislated for marriage equality, they took the necessary steps to convert their civil partnership into a legal marriage in 2015, retroactive to 2009 as allowed under British law.

Meanwhile, they decided to have children. Stefania gave birth to their first son, Lucas, conceived with sperm from an anonymous donor, in January 2015, a few weeks after they had converted their civil partnership into a marriage, and both women were listed on the birth certificate as parents.  They had another child in 2017, Massi, with Allison as the birth mother using sperm from the same anonymous donor, so that the boys would be biological half-brothers.  Massi’s birth certificate lists both women as his parents.  Both sons were born when their mothers were legally married, and at a time when under U.S. law their British marriage would be entitled to recognition.

After each child was born, they went to the U.S. Embassy in London to apply for a Consular Report of Birth Abroad and a U.S. passport for their sons. In 2015 they were told they couldn’t apply for Lucas, the first-born, because he was not biologically related to Allison, the U.S. citizen of the couple.

They returned to the Embassy after Massi was born in 2017, seeking to apply on behalf of both boys. Massi’s application was granted based on Allison’s U.S. citizenship, but Lucas’s application was denied.  In a letter communicating the denial, the State Department said: “It has been determined that there is not a biological relationship between the U.S. citizen mother and child, through either a genetic parental relationship or a gestational relationship, as required under the provisions of Section 309(c) of the Immigration and Nationality Act.”  Section 309(c) is, however, irrelevant, because it deals with children born “out of wedlock,” that is, to unmarried parents.  But Allison and Stefania are married, and they have a constitutional right to recognition of their marriage by the U.S. government.

In essence, the State Department is flouting the Supreme Court’s decisions. Pavan v. Smith was a dispute about Arkansas’s refusal to issue birth certificates showing both mothers of children born to married lesbian couples who conceived their children using donated sperm.  The Court said that Arkansas had to apply the same rule it used when different-sex married couples had children through donor insemination.  Although the father in such a case is not biologically related to the child, nonetheless he is entitled to be listed on the birth certificate and treated as the child’s legal father.  The Supreme Court, quoting from its early decision in Obergefell, said that married same-sex couples are entitled to the same “constellation” of rights as married different-sex couples.  And, of course, in U.S. v. Windsor, the Court made clear that legally married same-sex couples are entitled to have their marriages recognized on the same basis as the marriages of different-sex couples by the U.S. government.

That includes, these two new lawsuits argue, having their marriages recognized under Section 301(g), and thus conferring on their children U.S. citizenship, regardless which of the parents is their biological father or mother.

This is not just a new Trump Administration move. The Dvash-Banks family encountered their problem with the State Department in 2016, during the last year of the Obama Administration, and the Blixt family’s attempt to get a passport for Lucas was rebuffed in 2015.  What these cases will require is for the courts to be faithful to the broad rulings in Obergefell, Pavan and Windsor, and to treat these boys as U.S. citizens since they were born to married couples, each of which included one spouse who is a U.S. citizen and who clearly fulfills the residency requirements established in Section 301(g).  Treating them as children born “out of wedlock” is a failure of their rights to equal protection and due process of law under the 5th Amendment, argues the complaint.

Both complaints seek a declaratory judgment stating that the State Department’s application of its policies in these cases is unconstitutional and that each of the boys in question is a U.S. citizen. The complaints seek injunctions ordering the State Department to cease discriminating against married same-sex couples by classifying their children as being “born out of wedlock.” Of course, if the courts grant the requested relief, the plaintiffs are also seeking an award of attorneys’ fees and reasonable litigation costs.

N.Y. Appellate Division Rules against Sperm Donor Seeking Paternity Determination and Custody

Posted on: January 25th, 2018 by Art Leonard No Comments

 

In a case showing the pressing need for revision and updating of New York’s Domestic Relations Law to reflect modern-day family realities and effectively take account of the existence of the N.Y. Marriage Equality Act, the Appellate Division, 3rd Department, ruled on January 25 that a sperm donor to a lesbian married couple was “equitably estopped” from seeking a paternity determination regarding the child conceived using his sperm, and countermanded a ruling by Chemung County Family Court Judge Mary Tarantelli that genetic testing be done to confirm the plaintiff’s biological fatherhood.  Christopher YY v. Jessica ZZ and Nichole ZZ, 2018 WL 541768.  There was no dispute between the parties that the child in question was conceived using his sperm.

Jessica and Nichole, the respondents in this case, were married before Jessica gave birth to their child in August 2014. Justice Robert C. Mulvey described the circumstances of the child’s conception: “It is undisputed that the child was conceived, on the second attempt, through an informal artificial insemination process performed in respondents’ home using sperm donated by petitioner.  The parties, who had known one another for a short time through family, had discussed respondents’ desire to have a child together, and petitioner volunteered to donate his sperm for this purpose.  The parties agree that petitioner, with his partner present, knowingly provided his sperm to assist respondents in having a child, and that the wife performed the insemination.  Prior to the insemination, the parties had entered into a written agreement drafted by petitioner that was signed by respondents and petitioner in the presence of his partner.  Pursuant to that written agreement, which was entered into without formalities or the benefit of legal advice, petitioner volunteered to donate his sperm so that respondents could have a child together, expressly waived any claims to paternity with regard to any child conceived from his donated sperm and further waived any right to custody or visitation, and respondents, in turn, waived any claim for child support from petitioner.”  The court noted that Christopher, the petitioner, denied the existence of such a written agreement, but the court found that the testimony by respondents and petitioner’s partner provided a basis for the Family Court’s determination that it did exist.

After the child was born, the parties “disagreed on petitioner’s access to the child, and his partner subsequently admitted in sworn testimony that she had destroyed the only copy of that agreement,” but the court decided that the agreement was only being considered for the purpose of determining the parties’ “understanding, intent and expectations at the time that petitioner donated his sperm and the wife impregnated the mother,” and not as a legally enforceable contract, so its destruction was not critical in this case. The court stated that the respondents lived together with the child as a family, and the petitioner did not see the child until she was one or two months old.

Family Court Judge Tarantelli rejected the mother’s motion to dismiss the proceeding, and, over opposition, granted the petitioner’s request for genetic testing, but agreed to stay the testing order while the mother appealed the ruling. The Appellate Division allowed a direct appeal of the Family Court’s order.

Justice Mulvey reviewed the basic family law principles under which the spouse of a woman who bears a child is presumed to be the child’s legal parent, the child being characterized as a “product of the marriage.” The statutes provide that this presumption can be rebutted through a proceeding establishing that another man than the mother’s husband is the biological father of the child, so that the child is not, literally speaking, a “product of the marriage.”   But, he pointed out, the tests in our antiquated statutes don’t really account for the modern phenomenon of same-sex couples having children through donor insemination, as the donor insemination statute focuses on the legal parental status of a husband who gives written permission for his wife to receive a sperm donation from another man.

“Application of existing case law involving different-gender spouses,” Mulvey wrote, “addressing whether the presumption has been rebutted, to a child born to a same-gender married couple is inherently problematic, as it is not currently scientifically possible for same-gender couples to produce a child that is biologically ‘the product of the marriage.’ . . . If the presumption of legitimacy turns primarily upon biology, as some earlier cases indicate, rather than legal status, it may be automatically rebutted in cases involving same-gender married parents.  This result would seem to conflict with this state’s ‘strong policy in favor of legitimacy,’ which has been described as ‘one of the strongest and most persuasive known to the law.’  Summarily extinguishing the presumption of legitimacy for children born to same-gender married parents would seem to violate the dictates of the Marriage Equality Act,” noting that law’s requirement that married same-sex couples have the same “legal status, effect, right, benefit, privilege, protection or responsibility relating to marriage” as different-sex couples have.  “As the common-law and statutory presumptions of legitimacy predate the Marriage Equality Act,” Mulvey commented, “they will need to be reconsidered.”

While pointing out that “a workable rubric has not yet been developed to afford children the same protection regardless of the gender composition of their parents’ marriage, and the Legislature has not addressed this dilemma, we believe that it must be true that a child born to a same-gender married couple is presumed to be their child and, further, that the presumption of parentage is not defeated solely with proof of the biological fact that, at present, a child cannot be the product of same-gender parents.” The court decided, biology aside, that the petition in this case has not “established, by clear and convincing evidence, that the child is not entitled to the legal status as ‘the product of the marriage,” and thus the presumption is not rebutted and, even if it was because there was no disagreement that petitioner was the only sperm donor, “we find, for reasons to be explained, that the doctrine of equitable estoppel applies to the circumstances here and that it is not in the child’s best interests to grant petitioner’s request for a paternity test.”

The court rejected any argument that because the respondents had proceeded informally and not complied with statutory provisions governing donor insemination in New York, they were precluded from achieving legal recognition for their family. Actually, in past cases the New York courts have not formalistically insisted that parental presumptions don’t apply if the parties failed to follow the donor insemination law to the letter.  As to the application of equitable estoppel to block Christopher’s paternity action, the court cited earlier cases holding that the doctrine “is a defense in a paternity proceeding which, among other applications, precludes a man from asserting his paternity when he acquiesced in the establishment of a strong parent-child bond between the child and another [person].”  This is done to “protect the status interests of a child in an already recognized and operative parent-child relationship.”  In other words, the court is not going to let Christopher interfere in the established relationship that Nichole has with the child her wife bore.

Relating this back to the facts of the case, Mulvey found that the conduct of the parties support blocking Christopher from the paternity action. “He was not involved in the child’s prenatal care or present at her birth, “wrote Mulvey,” did not know her birth date, never attended doctor appointments and did not see her for at least one or two months after her birth.  He was employed, but never paid child support, and provided no financial support…  By his own admission, he donated sperm as a ‘humanitarian’ gesture, to give respondents ‘the gift of life’ and expected only ‘contact’ with the child as a ‘godparent’ by providing her mothers with ‘a break’ or ‘help.’  He never signed an acknowledgement of paternity or asked to do so, and no aspect of his testimony or conduct supports the conclusion that he donated sperm with the expectation that he would have a parental role of any kind in the child’s life, and he never had or attempted to assert such a role.”  On the other hand, the testimony fully supported Nichole’s role as a mother to the child.  The court also pointed out that Christopher didn’t file his petition until the child was seven months old, and was “in an already recognized and operative parent-child relationship” with her birth mother, Jessica, and with her other mother, Nichole.

The court concluded that authorizing genetic testing and allowing the case to proceed was not in the child’s best interest, in light of the existing relationship of the child and her parents.

The court related that a new attorney had been appointed to represent the child in this appeal. She had favored the genetic testing, mainly because of events that have occurred since the Family Court hearing. It seems that the child has been in foster care, and there are neglect petitions pending against the mothers, although the lawyers appearing at the hearing in the Appellate Division did not know the details.  “However,” wrote Mulvey, “we find that the subsequent events, on which we take no position, do not alter our conclusion that respondents established at the [Family Court] hearing that petitioner should be equitably estopped from asserting paternity under the circumstances known to the Family Court at the time of the hearing,” and allowing new matters to be raised at this point “should not be permitted.  Doing so would continue to invite challenges to the then-established family unit into which the child was born, creating instability and uncertainty.”

Jessica is represented by Ouida F. Binnie-Francis of Elmira, N.Y., and Nicholde is represented by Lisa A. Natoli of Norwich. The child is represented by Michelle E. Stone of Vestal.  Christopher is represented by Pamela B. Bleiwas of Ithaca.