Biden Creates Pathway to Citizenship for Same-Sex Couples’ Children Born Abroad, Changes Need for Biological Parent

US President Joe Biden steps off Air Force One upon arrival at Andrews Air Force Base in Maryland on May 19, 2021. (Photo by Nicholas Kamm / AFP) (Photo by NICHOLAS KAMM/AFP via Getty Images)
NICHOLAS KAMM/AFP via Getty Images

Citing “advances in assisted reproductive technology,” President Joe Biden’s State Department is “updating” the Immigration and Nationality Act that contains the requirements for the granting of U.S. citizenship to children born abroad. The new policy will allow children of married same-sex couples to have a pathway to citizenship even if those children are not related to a U.S. citizen.

Prior to the announcement of the new interpretation of Section 301 of the Act, a child born abroad had to have a “genetic and gestational” relationships to a U.S. citizen parent.

“This updated interpretation and application of the INA takes into account the realities of modern families and advances in ART from when the Act was enacted in 1952,” the State Department announcement states. “This change will allow increased numbers of married couples to transmit U.S. citizenship to their children born overseas, while continuing to follow the citizenship transmission requirements established in the INA. Requirements for children born to unmarried parents remain unchanged.”

The San Francisco Chronicle reported on the policy shift:

The previous policy, which began under President Barack Obama’s administration, required a biological connection between the child and the U.S. citizen parent. Although it was drafted to apply to all couples, a lawsuit filed in Los Angeles by a gay couple in 2018, during Donald Trump’s presidency, said the State Department was enforcing the biological requirement only against same-sex couples.

Several federal courts found the limitation unconstitutional, based on the Supreme Court’s 2013 ruling that required the government to grant same-sex spouses the same marital benefits as opposite-sex couples. But the policy remained on the books until Tuesday.

“This is a remarkable moment for all the LGBTQ families who fought the U.S. State Department’s unconstitutional policy,” Aaron Morris, executive director of Immigration Equality, which sued on behalf of two same-sex couples, said. “We have once again affirmed that it is not biology but love that makes a family.”

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