In vitro fertilization is used by more and more families. Its benefits include enabling same-sex families to start families with biological children rather than adoption. It also helps male-female couples who have trouble conceiving.

The former example was the case when two men living in Canada celebrated the birth of twin sons in 2016. One father was a U.S. citizen, and the other was Israeli. The couple opted to move to the United States to be closer to family and start a new job. The wrinkle was that the twin boys carried by the same surrogate using the same egg donor were fertilized individually, so one is the biological son of one father, and the other was the biological son of the other father.

This is a common practice, but the family ran afoul of the U.S. State Department when it came time to get passports and citizenship for the twins. The U.S. consulate in Canada insisted that the boys’ DNA be tested to determine the paternity of the children (the fathers had kept their arrangement a secret). After seeing the results, the consulate issued citizenship and a passport to the son of the U.S.-born father but granted visitor status to the son of the Israeli-born father.

Court rules that biology is not an issue

A Los Angeles District Court Judge ruled that both boys were citizens because the men were legally married. As with adoptive family, the child need not be born to U.S. parents if the legal parents were U.S. citizens, nor do they need to be born in the U.S. if the father is a U.S. citizen. In this case, both twins became U.S. citizens when they were born, regardless of the DNA. Moreover, the judge also ruled the State Department’s initial rejection violated the family’s Fifth Amendment right to due process.

A victory for all families

The State Department’s website formerly had language that stated that that babies born abroad must have a biological connection to a U.S.-citizen parent. This policy was written to address children born out of wedlock but will now need to be rewritten in light of this ruling.

This story has a happy ending, but it was not without help from an attorney. International families or families with same-sex parents enjoy all the same protections as mixed gender married couples with biological children. Laws may not always be up to date in this regard, so it is sometimes necessary to work with an attorney to protect the family’s rights.