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State Dept. fighting to deny US citizenship to gay couple's child

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Kiyoshi Tanno/iStockBy CONOR FINNEGAN, ABC News

(WASHINGTON) — The State Department is appealing a federal judge’s decision that it must recognize the U.S. citizenship of a young girl born via surrogate to a gay couple — prolonging one of many legal fights over its controversial policy that was deemed unconstitutional in June.

Roee Kiviti and Adiel Kiviti of Chevy Chase, Maryland, are legally married and both U.S. citizens. Their daughter Kessem was born in Canada via a surrogate, so the State Department has argued in federal court that she is “born out of wedlock” and not entitled to birthright citizenship.

Specifically, the department’s policy on “assisted reproductive technology” says, “A child born abroad to a surrogate, whose genetic parents are a U.S. citizen father and anonymous egg donor, is considered for citizenship purposes to be a person born out of wedlock.”

If that seems antiquated, that’s because the policy is based in the 1952 Immigration and Nationality Act, crafted years before in vitro fertilization or legal same-sex marriage. The policy was first developed in the 1990’s to be compliant with that law, although critics have questioned why the Trump administration has so vigorously defended it decades later.

While the Kiviti’s are legally married, the State Department essentially disregarded their marriage and determined that Kessem, born out of wedlock, required a biological connection to a U.S. citizen parent who resided in the U.S. for at least five years in total.

Because Adiel Kiviti, her biological father, had not done so at the time of her birth, she did not automatically qualify for U.S. citizenship, the department ruled.

In June, a federal judge ruled in the family’s favor, calling the department’s policy unconstitutional. But last Friday, the department filed an appeal to fight the decision.

Asked why the State Department is pursuing the case, a spokesperson declined to comment on “pending litigation.”

Through their lawyers at Lambda Legal, Immigration Equality, and the firm Morgan Lewis, Roee Kiviti said in a statement Monday, “It’s sad that we have to continue this legal battle. But we are undeterred. We are doing this not just for our daughter and our family, but so that other families won’t have to.”

The Kiviti’s are not the only family in a legal battle with the department on this issue.

According to Immigration Equality, Derek Mize and Jonathan Gregg, a gay couple in Atlanta, are also awaiting a ruling by a federal judge over their daughter Simone’s citizenship.

The group also represents Allison Stefania and Lucas Zaccari — a lesbian couple fighting for their daughter’s citizenship. She was born to Lucas, an Italian citizen, via in vitro fertilization, so the State Department ruled she was born out of wedlock to a non-U.S. citizen, disregarding Allison’s U.S. citizenship and their marriage. The couple is also awaiting a decision.

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