Blood is Thicker than Water: Adapting Bloodline Citizenship to the Modern Age

Blog Post | 108 KY. L. J. ONLINE | Oct. 21, 2019

Blood is Thicker than Water: Adapting Bloodline Citizenship to the Modern Age

H.S. Collier Clay[1]

In the United States the laws determining who may acquire citizenship at birth stem from two doctrines. The first is jus soli, meaning law of the soil, which originates from the common law and provides citizenship to children based on where the child was born.[2] The second rule is jus sanguinis, meaning law of the bloodline, which originates from Roman law and provides citizenship based upon the citizenship of a child’s parents.[3] While obtaining citizenship for a child born abroad under jus sanguinis is usually a simple process, complications arise when a child’s biological parents are unmarried and are not both U.S. citizens.[4] The difference may depend on whether the U.S. State Department categorizes a child as born in or out of wedlock because children deemed to have been born in wedlock are presumed to be an issue of that marriage.[5] At a glance it might appear reasonable for a presumption to be awarded to children of married couples to encourage marriage and allow the government assurance that the child receiving citizenship through jus sanguinis is in fact the child of a U.S. citizen. However, we are well past the days of ancient Rome and with the advancement of assisted reproductive technology comes a new type of parent child relationship that the old rule did not anticipate.

In 2019, Roee and Adiel Kiviti welcomed their daughter, K.R.K., into the world.[6] While Roee and Adiel were both born in Israel, the United States is their home, as Roee has lawfully resided in the U.S. since 1982 became a U.S. citizen in 2001 and Adiel has lived in the U.S. since 2015 and became a citizen in January, 2019.[7] The two men were married in Santa Barbara, California, on October 15, 2013.[8] Roee and Adiel are the only two parents listed on K.R.K.’s birth certificate.[9] However, because K.R.K. was born using assisted reproductive technology (“ART”), Adiel was her only known biological parent, as K.R.K. was born via gestational surrogacy using Adiel’s sperm a donated egg.[10] When the Kiviti’s tried to obtain a U.S. passport for K.R.K. it was denied because the State Department evaluated K.R.K.’s application as they would for a child born out of wedlock.[11] When a child is deemed to have been born out of wedlock the State Department requires the child’s biological parent to have permanently resided within the United States for at least five years.[12] Therefore, despite having two parents who were legally married under federal and California law,[13]and were both citizens of the United States,[14] the State Department denied K.R.K.’s application for citizenship. The Kiviti’s must dispute their daughters claim to U.S. citizenship in federal court, and as of October 15, 2019, Secretary Pompeo has not responded to the Plaintiffs’ complaint, however, he has until November 12, 2019.[15]

There are many, including the Kiviti’s, who will regard this as another battle in the long war for equality for same-sex couples,[16] and they might be correct. It is the unfortunate reality of the world we live that in many cases involving the equal rights of same-sex couples there are those who seek to justify the injection of government into the intimacy of marriage under the pretense of childrearing.[17] Most courts have not bought the argument, for example the court in Bourke v. Beshear stated that it “fails to see how having a family could conceivably harm children.”[18] Thus, if this is the reason for the State Department’s policy it will almost certainly fail.

The State Department’s policy also risk harming different-sex couples. According to the State Department’s Foreign Affairs Manual (“FAM”) a child of a married couple who was conceived using ART is considered to have been born out of wedlock in two circumstances: (1) when the child’s genetic parents are a U.S. citizen mother and anonymous sperm donor, and (2) whose genetic parents are a U.S. citizen father and anonymous egg donor.[19] In 2016 there were 263,577 ART procedures performed in the U.S. alone, and as technology continues to improve that number is almost certain to grow.[20] It is quite possible that there will be more cases like Kiviti v. Pompeo, involving both same-sex and different-sex couples. This may affect only a small percentage of U.S. citizens, however, the impact it has on those citizens cannot be overstated. To deprive from parents the ability to be a fellow citizen with their own child because the parent used assisted reproductive technology is nonsensical. The time and money parents spend litigating over the issue of their child’s citizenship are resources they could otherwise spend on their children.

The State Department should amend FAM to deem children who are born abroad and were conceived through assisted reproductive technology as children born in wedlock when both legal parents are married. Thankfully, it seems as if Congress has already set out to clarify the statute. On July 17th, 2019 H.R. 3799 was introduced on the floor for the House of Representatives.[21] If it is approved, the bill would change the law to define any reference to “a person born of parents” to include legally recognized parent-child relationships.[22] Should the bill pass it would be a win for all couples seeking to start a family with the help of assisted reproductive technology.

[1] Staff Editor, Kentucky Law Journal, Volume 108; J.D. Candidate, University of Kentucky College of Law (2021); B.A. Centre College (2017).

[2] 8 FAM 301.1-1(a)(1) (2018) (also noting that this is embodied within the Constitution after the Fourteenth Amendment was ratified); see alsoU.S.  Const. amend. XIV; 8 U.S.C.A. § 1401(a).

[3] 8 FAM 301.1-1(a)(2) (2018); see also 8 U.S.C. § 1401(c) (2012).

[4] 8 FAM 301.4-1(B), (D) (2018); see also 8 U.S.C. § 1409 (2012).

[5] 8 FAM 301.4-1(D)(1)(d) (2018); see also 8 U.S.C. § 1409 (2012).

[6] Complaint at 2, ¶ 2 No. 19-2665 (S.D. Md. 2019).

[7] Id. 4, ¶¶ 10-11.

[8] Id. at 4, ¶ 12.

[9] Id. at 12, ¶ 48.

[10] Id. at 2, ¶ 2.

[11] Id. at 13, ¶ 51-52.

[12] Id.; 8 U.S.C. §1401(g) (2012); see also § 1409.

[13] Obergefell v. Hodges, 135 S. Ct. 2584 (2015); Hollingsworth v. Perry, 570 U.S. 693 (2013); Cal. Fam Code § 301 (West 2019).

[14] Complaint pg 4 ¶¶ 10-11.

[15] Kiviti et al v. Pompeo et al, PacerMonitor, https://www.pacermonitor.com/public/case/30014585/Kiviti_et_al_v_Pompeo_et_al.

[16] Complaint at 1-2, ¶ 1 (“The State Department’s unjust policies and practices should be enjoined because they violate the Immigration and Nationalization Act (“INA”), unconstitutionally disregard the dignity and equality of the marriages of same-sex couples, and unlawfully discriminate against children simply because their married parents are a same-sex couple.”). For a brief history of the development of the laws on gay marriage in Kentucky from 1972-2014, see Bourke v. Beshear, 996 F.Supp.2d 542, 544-46. (W.D. Ky. 2014) (beginning at “In 1972, two women stepped forward to apply for a marriage license. …”). For a brief history of development of those laws at the Federal level see Obergefell, 135 S. Ct. 2595-97 (starting at “Their stories reveal that they seek not to degenerate marriage but rather to live their lives ….”).

[17] U.S. v. Windsor, 570 U.S. 744, 772; Bourke v. Beshear, 552-53; Bishop v. United States ex rel. Holder, 962 F.Supp.2d 1252, 1290–96 (N.D. Okla. 2014); Kitchen v. Herbert, 961 F.Supp.2d 1181, 1211–14 (D. Utah 2013). See also Lynn Wardle, “Multiply and Replenish”: Considering Same–Sex Marriage in Light of State Interests in Marital Procreation, 24 Harv. J.L. & Pub. Pol'y 771, 799 (2001) ( “Culturally, the legalization of same-sex marriage would send a message that would undermine the social boundaries relating to marriage and family relations. The confusion of social roles linked with marriage and parenting would be tremendous ….”); Maggie Gallagher, (How) Will Gay Marriage Weaken Marriage as a Social Institution: A Reply to Andrew Koppelman, 2 U. St. Thomas L.J. 33, 58 (2005) (“If the idea of marriage really does matter … then taking an already weakened social institution, subjecting it to radical new redefinitions, and hoping that there are no consequences is probably neither a wise nor a compassionate idea”).

[18] 996 F. Supp. 542, 553.

[19] 8 FAM 304.3-2(c), (f).

[20] National Center for Chronic Disease Prevention and Health Promotion, 2016 Assisted Reproductive Technology National Report, 3. (available at https://www.cdc.gov/art/pdf/2016-report/ART-2016-National-Summary-Report.pdf); Robert Johnston, et al., Demographic and obstetric outcomes of pregnancies conceived by assisted reproductive technology (ART) compared to non-ART pregnancies JBRA assisted reproduction (December 11, 2014) (“Assisted reproductive technology (ART) has grown steadily since the birth of the first U.S. infant conceived with this technology in 1981. In 2000, there were 25,228 live births and 35,025 infants … by 2010, this figure had nearly doubled to 47,090 live births and 61,564 infants”) (available at https://www.jbra.com.br/media/html/JBRA1102.html).

[21] H.R. 3799, 116th Cong. (2019).

[22] Id.