Same-sex couple Andrew and Elad Dvash-Banks filed a lawsuit against the State Department this week for giving United States citizenship to one of their year-old twin boys but not the other.
The suit, also filed with a female same-sex couple in a similar situation, lists both the State Department and Secretary of State Rex Tillerson as defendants.
Los Angeles-born Andrew and Tel Aviv-born Elad had hoped to marry in the U.S., but in 2010, the Defense of Marriage Act was still in existence, so the couple moved to Toronto, where Andrew also has citizenship and gay marriage was legal.
The couple married in 2011 and knew they wanted a family. After finding a surrogate, they used sperm from both men, and the Dvash-Bankses were thrilled when their sons, Aidan and Ethan, were born. Aidan is Andrew’s biological son and Ethan is Elad’s biological son.
In a video put out by Immigration Equality, Andrew said, “When the twins were born and we saw our children take their first breath, their first cry, it was just amazing.”
“How are we going to explain this to [Ethan] when he grows up? [Aidan] is a U.S. citizen at birth and you’re not?” — Elad Dvash-Banks
When same-sex marriage was finally legalized in the United States in 2015, the couple planned to move back to Los Angeles, with Andrew sponsoring Elad’s green card. They returned in August 2017 to Los Angeles, where Elad works at IKAR as the organization’s development manager.
However, immigration authorities demanded DNA testing for the twins, and determined that because Aidan was the only child biologically related to Andrew, he alone would be granted U.S. citizenship.
His twin brother, Ethan, also is a plaintiff in the lawsuit as he was allowed into the country only on a tourist visa, but that expired on Dec. 23, 2017.
The lawsuit states, “All of Andrew and Elad’s professional, personal and familial commitments are in constant jeopardy of being undone if the Department of Homeland Security deports Ethan.”
While the State Department has not officially responded to any requests to discuss the lawsuit, its website states that children born overseas via “Assisted Reproductive Technology” can be granted citizenship at birth only if they are “biologically related to a U.S. citizen parent.”
Andrew and Elad were shocked when they were asked to perform a DNA test on their children. They queried if they had been a straight couple — an American husband and an Israeli wife — would they ever have been asked to perform a DNA test or questioned if they had used a surrogate.
The lawsuit also argues, “The State Department’s policy is arbitrary and capricious and serves no rational, legitimate, or substantial governmental interest. The State Department’s policy drives families apart by treating the children of the same married parents differently depending upon which father’s sperm was used during fertilization.”
“Being a father is everything to me. It’s really important for us that our kids can fulfill their full potential,” Elad said. “All we want is a healthy, happy family. How are we going to explain this to [Ethan] when he grows up? [Aidan] is a U.S. citizen at birth and you’re not?”
“[Ethan] should be treated like any other child born to a U.S. citizen,” Andrew said. “Like his twin brother or like any other child born to a U.S. citizen abroad. None of it makes sense. It’s not right and we know it’s not right.”