Simone Mize-Gregg was stateless for the first two years of her life. A surrogate in England gave birth to her, and two men in a same-sex marriage are raising her. Both men are U.S. citizens, but Simone’s biological father, Jonathan Gregg, has dual U.S.-British citizenship and lived in the United States less than five years before her birth. Neither he nor the child’s mother met the requirements for Simone to receive automatic U.S. citizenship at birth.
U.S. District Judge Michael Brown ruled on Aug. 27 that Simone does not have to be biologically related to both men to obtain U.S. citizenship and ordered the State Department to issue her a passport. The case highlights growing tensions between the U.S. government and same-sex couples who employ a complex web of international surrogacy arrangements.
Since the Supreme Court’s 2015 Obergefell decision legalized same-sex marriage in the United States, LGBT advocates argue the government’s requirements for citizenship are discriminatory since they convey it along biological lines. Same-sex couples are increasingly challenging laws that uphold the reality that every child is the genetic offspring of just one man and one woman.
White House Press Secretary Kayleigh McEnany said on Aug. 31 that the State Department’s policy “pertained to surrogacy” and the government did not intend it to discriminate against same-sex couples. The State Department said has not indicated whether it will comply with the judge’s decision, an agency spokesperson said. Earlier in August, the State Department appealed a similar ruling in a case involving same-sex couple Adiel and Roee Kiviti and Adiel’s daughter Kessem who was born to a Canadian surrogate. The U.S. government refused Kessem’s citizenship since Adiel Kiviti had not lived in the country for five years before her birth.
In disputes like those, the child’s need for both a mother and a father often gets lost.
“The message is that biological connection matters only when the adult wants it to,” said Katy Faust, the founder and director of Them Before Us, a child advocacy group. “As always, reproductive technology is outpacing the conversations we should be having about the ethics of surrogacy.”
Jennifer Lahl, president of the Center for Bioethics and Culture, said that overseas surrogacy arrangements erase the role two women played in the birth: the genetic mothers who sell their eggs and the birth mothers who act as gestational surrogates. “These women … are nowhere to be found on the birth certificate,” she noted.
Meanwhile, the coronavirus pandemic has exacerbated problems persistent in overseas surrogacy arrangements. Travel limitations have stranded babies born in surrogacy-friendly countries for international couples and left them stateless.
“Certainly the U.S. must recognize the human rights violations of these children, to know and be known by their parents,” Lahl said.