NEW YORK – When their daughter was born in February 2019, Roee and Adiel Kiviti thought they’d be worrying about diapers and bottles 18 months later. The Israeli-American, same-sex couple never imagined they’d be engaged in a drawn-out legal battle with the U.S. State Department over their baby’s citizenship.
Roee, 42, grew up in Southern California after moving from Israel as a child, becoming a U.S. citizen in 1993. Adiel, 41, has been a naturalized U.S. citizen since January 2019. The couple was married in California in October 2013 and now lives in Maryland, where they have been fighting to obtain a passport for daughter Kessem since she was born via surrogacy in Canada last year.
According to section 301 (c) of the Immigration and Nationality Act, a person born abroad to married U.S. citizens acquires U.S. citizenship at birth if at least one of the parents resided in the United States prior to the person’s birth.
But when they applied for Kessem’s U.S. passport in May 2019, the State Department rejected their application. The couple decided to sue, and this June a Maryland federal district court recognized Kessem’s birthright citizenship and ordered that her passport be issued. The State Department is now appealing that decision and her right to birthright U.S. citizenship.
Roee and Adiel Kiviti’s oldest child, Lev, was also born in Canada by surrogacy in 2016. He has both U.S. citizenship and a U.S. passport.
“When you’re gay and you come out, you’re very aware that you’ll encounter discrimination,” Adiel told Haaretz in a Zoom interview. “It’s clear to you, it’s part of your considerations, you accept it and you tell yourself that despite the discrimination you’ll encounter in your life, you want to live your true self. But as a parent, when it starts affecting your kids, it’s a different story,” he said.
He added that “there’s no reason for this little girl to have less rights than another child because she has two parents who are men.”
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Despite Kessem’s Canadian birth certificate listing Roee and Adiel as her parents, the State Department is arguing that because she was born via surrogacy and only has a biological relationship to Adiel, Kessem should be treated as a child “born out of wedlock” – in effect, disregarding her parents’ marital status.
The State Department only recognized Adiel as a parent and argued that he does not meet the five-year residency requirement (in births deemed “out of wedlock”) to transfer U.S. citizenship to his daughter, since he officially moved to America with Roee in 2015.
“We submitted the [passport] application right at the same time that Pete Buttigieg and his husband [Chasten] were on the cover of Time magazine,” Roee recalled. “I can’t tell you how much it felt like a punch in the gut to apply to something and be told to go sit and wait on the side.”
He recounted how they sat at a passport center “for an hour and a half as couple after couple came and left before us. It was insulting, it was degrading and it was infuriating,” he said.
Adiel noted that “for a straight couple who, for example, used a sperm donor, no one asks them when they apply if they’re the biological parents of the child. Of course not.”
Challenging the government
Roee and Adiel chose to have both their children in Canada because the country allows for altruistic surrogacy – i.e., surrogates cannot be paid for the service – which made them feel more comfortable with the process. As U.S. citizens, they never thought they’d face an issue with Kessem’s citizenship and passport.
The advocacy group Lambda Legal and Immigration Equality is among those representing the couple pro bono. Without their assistance, the Kivitis admit they wouldn’t have been able to challenge the government.
After the Maryland judge ruled in their favor earlier this summer, they finally received Kessem’s passport. If the State Department wins its appeal, however, they will potentially have to surrender it. Until she received her passport, Kessem was residing in the United States on a tourist visa.
“One of the mysteries in this story is why do they even invest resources in it? What’s the endgame?” Adiel asked. As he sees it, short of being able to reverse the Supreme Court’s 2015 decision to legalize same-sex marriage across the United States, the current State Department is trying to “fight the rights you can get as a married couple. And one of those rights is citizenship by birth.”
However, Adiel said, he doesn’t want to make this a partisan issue. “I think this is a matter of values, of universal values: family, parenthood, the bond between a child and their parent,” he explained. “The road they’re leading to is basically that [Roee] is not Kessem’s parent and we’re not a family. This is against the well-being of the child.”
Kessem’s lack of a U.S. passport meant the Kivitis weren’t able to travel abroad with her, fearing she wouldn’t be allowed back into the United States upon their return. Because most of Adiel’s family lives in Israel, this means they haven’t all been able to meet her.
“Our nightmare was that they would knock on our door and try to deport her,” Adiel said. “Especially with the current administration, for sure it was something we feared. Can you imagine someone taking her?”
Roee added: “And who are you going to take her back to in Canada? The surrogate who has no biological connection with her or the anonymous egg donor? We’re American, we live in America, we got married in America,” he stressed. “There’s nothing complicated here.”
The Kivitis aren’t the only Israeli-American same-sex parents battling the State Department over their child’s U.S. citizenship.
Another couple, Andrew and Elad Dvash-Banks (the latter has Israeli, not U.S., citizenship), challenged a State Department denial of citizenship to one of their twin sons, Ethan, after a compulsory DNA test showed he was biologically related to the Israeli parent, though both of the fathers’ names were listed on the birth certificates. (The other son, Aiden, was recognized as a U.S. citizen.)
They won their case in a Los Angeles federal district court in February 2019, with the judge ruling that U.S. law does not require a child to show a biological relationship with their parents if their parents were married at the time of their birth. The State Department is appealing that decision as well.
Democratic senators wrote to Secretary of State Mike Pompeo last year, urging him to reverse the department’s “discriminatory policy” toward same-sex couples who have children abroad.
In the letter, dated June 2019, the 19 Democratic senators wrote that the department’s “reinterpretation of immigration law to deny the constitutional right of citizenship to the children of same-sex couples who are born outside the United States is extraordinary and deeply disturbing.
“Every new American parent should focus on celebrating the birth of a child, not be consumed with fear that all members of their family may not be welcomed back home to the United States,” the letter added.
“For us as two men, it is very important that we give [our daughter] everything we’d give to a boy,” Roee Kiviti told Haaretz. “With our son, before he turned 2 years old he had already been to eight countries,” he said. “These are things we can’t give our daughter right now, and you always worry about what impact it’s going to have on them if you can’t offer the same things.”
However long the process takes, the Kivitis vowed to never give up on Kessem’s right to a U.S. passport.
“We’re proud to say that even before she could walk, we taught our daughter to stand up for her rights,” Roee said. “One day, how do we possibly tell one of our kids why they’re a citizen and the other isn’t? We have to be able to say that, just like we did before they were born and after they were born, we fought, we did everything we could for them, without a second of hesitation.”
But as their own legal battle continues, Roee said the State Department’s policy is continuing to affect “countless families that aren’t coming forward, that don’t have the resources, the time, the support to deal with this.”
Adiel added: “A lot of people fought for us. People fought for us to be able to get married in the United States; people fought for our federal rights, for the federal government to recognize those rights. We’re now another link in the chain fighting for other families,” he said.
When Haaretz asked the State Department for a response to this story, a spokesperson said the department does not comment on matters under litigation.