A gay couple is suing the U.S. State Department after their daughter, who was born abroad with the help of a surrogate, was denied citizenship.
Despite recently celebrating their Simone’s first birthday, husbands James Derek Mize and Jonathan Gregg live with the looming fear that she could be deported at any time. Simone was born in Britain using a surrogate as well as a donor egg. The donor was a close British friend. Jonathan, who has both American and British citizenship, as he was born in Britain, used his sperm.
However, when the fathers returned to their home in Atlanta with their newborn, her application for an American passport was denied. This is despite the fact that both her fathers were in the delivery room and are the only ones listed as parents on her birth certificate.
“I try not to think about ICE coming to our door and deporting our baby,” James said during an interview, New York Times reports. “That is a pretty hard thing to think about.”
The couple are understand trying all they can to reverse the decision and keep their daughter in the States. Last Tuesday, they launched a discrimination lawsuit against Secretary of State Mike Pompeo, arguing that since they are both American citizens, their daughter automatically should be, too.
Current State Department law uses biological parentage in order to grant citizenship, which creates a problem for children produced through reproductive technology abroad. This policy has been criticized for unfairly affecting same-sex couples, as it means their kids may not automatically qualify for citizenship upon birth, much like Simone.
James and Jonathan are not the first same-sex couple to sue the State Department for this very reason. NY Times reports that at least two other gay couples have moved forward with cases involving the same issue. Additionally, one hundred Democratic members of Congress have already called upon the Secretary of State to reconsider the law.
The State Department has not spoken directly about the case of baby Simone. But it has defended the controversial citizenship laws in the past, citing them as necessary to prevent fraud.
However, some experts have argued that the Department’s interpretation of the policy as necessitating a biological connection is ungrounded. Karen Lowy, a lawyer with Lamda Legal, told NY Times “[the Department is] reading a biology requirement into the words of the statute that don’t exist.”
“What the State Department is doing is applying a provision of the law that only comes into play if you are considering them a nonmarital couple,” she added.
Despite the difficulties, James and Jonathan are taking one day at a time and treasuring the moments they have with their daughter. Simone remains in Atlanta with her fathers, but with her tourist visa expiring at the end of July, things will get trickier.
Her fathers explain she won’t be able to go outside the country (or else risk being unable to come back in). So, they won’t be able to see friends and family abroad with baby Simone. Likewise, the infant does not have a social s security number, so they can’t claim her as a dependent on their tax returns.
“We are very conscious that this first year of Simone’s life is very special and precious, and we will never get it back,” James said. “We are trying every day to live in the moment and to enjoy this time despite what is happening.”