Significant Appellate Ruling Upholds Citizenship for Twin Born Abroad by Surrogacy

October 16, 2020

The U.S. Court of Appeals for the Ninth Circuit unanimously upheld a lower court ruling that Ethan Dvash-Banks, a twin boy born abroad by surrogacy to Andrew and Elad Dvash-Banks, acquired U.S. citizenship at birth.
Andrew, a U.S. citizen, and Elad, an Israeli citizen, are a married gay couple who had twin sons through surrogacy in Canada during their marriage. One of the twins, “A,” was conceived from Andrew's genetic material, while the other, “E,” was conceived from Elad's genetic material. When the couple sought recognition of the twins' U.S. citizenship, the State Department applied a policy that treated the children as though they were born out of wedlock. This policy recognized A as a U.S. citizen, while the State Department would not recognize E as a citizen.
Partnering with Immigration Equality, the nation's leading LGBT immigrant rights organization, S&C helped the family file a lawsuit in January 2018, pursuing recognition of E's U.S. citizenship. E was issued a U.S. passport in 2019, after Immigration Equality and S&C obtained a ruling in the Dvash-Banks family's favor from Judge John F. Walter of the U.S. District Court for the Central District of California. The State Department appealed to the Ninth Circuit.
A unanimous three-judge panel on the Ninth Circuit upheld Judge Walter's ruling on October 9, finding that, under Ninth Circuit precedent, E had acquired U.S. citizenship at birth, because Section 301 of the Immigration and Nationality Act of 1952 “does not require a person born during their parents' marriage to demonstrate a biological relationship with both of their married parents.”
S&C partner Ted Edelman and Jessica Klein, head of the Firm's pro bono practice, led this effort, with support from lawyers in each of the Firm's U.S. offices.