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Child born to same-sex couple has U.S. citizenship, judge rules

Immigration Services

When a same-sex couple in Kentucky or elsewhere in the United States has children, it is not unusual for them to do so through surrogacy, in which one partner's biological material will be used to fertilize an egg that will be implanted in a surrogate who would become pregnant and ultimately give birth to the child. However, surrogacy becomes complicated when one partner is a U.S. citizen, while the other is not.

Take a recent case involving twins, in which the government argued that one twin born to a same-sex couple was a U.S. citizen, while the other twin was not. In this case, one father's genetic material was used to fertilize an egg, resulting in the birth of one of the twins, while the other father's genetic material was used to fertilize a second egg, resulting in the birth of the other twin. The fathers had married in Canada prior to the birth of the twins, and then moved to California. One father was a U.S. citizen, while the other was not.

The government argued that a child could only be granted U.S. citizenship if the child had a biological tie to a parent who was U.S. citizen. The government claimed that the twin born to the father who was not a U.S. citizen could not be granted citizenship, since that twin did not share any biological material with the parent who was a U.S. citizen. The government claimed that only the twin who was born from the biological material of the parent who was a U.S. citizen could be granted citizenship.

The judge, however, disagreed. He ruled that under the Immigration and Nationality Act a child born to a married U.S. citizen was a citizen from birth, since there was no requirement under the law that a child must share biological material with both married parents. Because both twins were born to a married couple and one partner was a U.S. citizen, both twins were U.S. citizens from birth.

While this case has a happy outcome for this family, other families in similar situations may not be so lucky. Immigration laws can be complex and controversial. It is essential that parents who believe their child should be deemed a U.S. citizen understand how current immigration laws apply to them, so they can make informed decisions moving forward.

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