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  Is birthright citizenship based on legal or biological parentage?
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Author Topic: Is birthright citizenship based on legal or biological parentage?  (Read 307 times)
Karpatsky
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« on: February 23, 2019, 09:16:05 am »
« edited: February 23, 2019, 09:20:55 am by Karpatsky »

Had a very long argument with some friends recently about this article. My position was that the State Department is correct here because citizenship by parentage is biological and is not instantly transferred by marriage, based on the two following analogies:

1. Pre-birth adoptions (which I argue are not substantially different from surrogacies) from non-US parents do not get birthright citizenship (though they are granted citizenship given some circumstances)
2. If in a marriage between a non-US citizen woman and a US citizen man, if the woman cheated with a non US-citizen and had a child, my understanding is that that child would not be a birthright citizen.

While they argued that the judge was correct because under a surrogacy contract, the biological mother is never considered the legal parent.

I eventually 'won' the argument because the whole time they were saying the distinction was that 'born to' meant legal and 'born of' meant biological, (which I had never heard of) and this was a 'born to' case - but when we looked up the actual statute it was all 'born of'. But doing more research I failed to find anything to support that original assertion, so I'm not sure.

Who is correct here? If it is in fact unclear, what are the chances the Supreme Court will have to decide what 'born of' means at some point?
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Bacon King
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« Reply #1 on: March 09, 2019, 06:59:18 pm »

Neither legal or biological parentage are relevant to birthright citizenship. Tongue

"Birthright citizenship" is the common term for jus soli (by right of the soil/land): i.e. citizenship is a right granted by your place of birth. What you're talking about, and what the case is based on, is jus sanguinis (by right of blood), which is citizenship granted by virtue of your parentage.

Not trying to harp on you, just helpfully clarifying it for you because used to get them mixed up all the time (honestly what confused me more than anything else is that Israel has a program called "Birthright" that gives Jewish people (in a certain age range) from anywhere in the world a free vacation to Israel --- so the term" birthright" as literally the opposite meaning there)

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My position was that the State Department is correct here because citizenship by parentage is biological and is not instantly transferred by marriage, based on the two following analogies:

In truth the law is apparently the opposite of the inference you've made, per the trial judge's decision:

Quote
John F. Walter, the federal judge in California, has now ruled that the Immigration and Nationality Act, the law that determines whether a person is a U.S. citizen by birth, makes Ethan a citizen from birth. He said that the parents were married at the time of his birth, and the law "does not require a person born during their parents' marriage to demonstrate a biological relationship with both of their married parents."

So the law written by Congress for the express purpose of defining citizenship per the terms of the 14th Amendment is only concerned with legal relationships, not biological, when determinging jus sanguinus citizenship here. If the parents are legally married, one of them is an American citizen, and they the legal parents of a child born during their marriage, then the child is an American citizen.

It's worth noting that these days any proper surrogacy contract will require the birth certificate to be amended, removing the birth mother and replacing her with the intended legal parents

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The couple told NPR's Leila Fadel last year that they were shocked at the conversation they had at the U.S. Consulate in Toronto when they went to provide documents for each twin's U.S. citizenship.

"She started off with, 'Obviously the two of you had to use assisted reproduction in order to have your family,' " Andrew told Fadel. " 'Tell me more about that. Tell me about who is genetically related to who.' "

wow lol this is blatantly and obviously unconstitutional even ignoring the precise language of the law. Treating one group of people (those in same-sex marriages) differently from everyone else? We have an obvious violation of the 14th Amendment's Due Process Clause right here. There's no rational basis for forcing only gay couples to prove something when it's already stated on the birth certificate, especially considering that use of a surrogate mother is also fairly common among heterosexual couples too

edit: also I'm pretty sure there's some unconstitutional violation of privacy going on here as well
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Ernest
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« Reply #2 on: March 09, 2019, 10:19:48 pm »

Is there any Federal law, either statutory law or case law other than this case, regarding the validity of surrogacy contracts vis a vis citizenship? There's no obvious reason they should or shouldn't be considered valid.
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Karpatsky
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« Reply #3 on: March 10, 2019, 07:40:10 pm »



edit: also I'm pretty sure there's some unconstitutional violation of privacy going on here as well

You've quoted the language used by the judge, but I don't see why it is cut and dry at the moment that the judge is wrong, and certainly not 'obvious'. For most all things, the judge is clearly correct that there is no need to prove parentage when the parents are married, but it definitely would should citizenship by parentage be biologically grounded. I don't see in this case that State is treating them differently arbitrarily - it doesn't have to do directly with their same-sex marriage but with their infertility, which is inherent to that. 

Basically, you're assuming the prior of my question, which is not 'what are the consequences of citizenship being based on legal, not biological parentage' but 'what aspect of parentage is citizenship by parentage based on'?
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Ernest
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« Reply #4 on: March 10, 2019, 08:52:28 pm »



edit: also I'm pretty sure there's some unconstitutional violation of privacy going on here as well

You've quoted the language used by the judge, but I don't see why it is cut and dry at the moment that the judge is wrong, and certainly not 'obvious'. For most all things, the judge is clearly correct that there is no need to prove parentage when the parents are married, but it definitely would should citizenship by parentage be biologically grounded. I don't see in this case that State is treating them differently arbitrarily - it doesn't have to do directly with their same-sex marriage but with their infertility, which is inherent to that. 

Yet I doubt current procedure would require a non-citizen mother married to a citizen father to prove that her child had her husband as the biological father. Applying that standard only in the case of same-sex marriages is discriminatory.
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Karpatsky
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« Reply #5 on: March 10, 2019, 09:22:38 pm »



edit: also I'm pretty sure there's some unconstitutional violation of privacy going on here as well

You've quoted the language used by the judge, but I don't see why it is cut and dry at the moment that the judge is wrong, and certainly not 'obvious'. For most all things, the judge is clearly correct that there is no need to prove parentage when the parents are married, but it definitely would should citizenship by parentage be biologically grounded. I don't see in this case that State is treating them differently arbitrarily - it doesn't have to do directly with their same-sex marriage but with their infertility, which is inherent to that. 

Yet I doubt current procedure would require a non-citizen mother married to a citizen father to prove that her child had her husband as the biological father. Applying that standard only in the case of same-sex marriages is discriminatory.

From my reading of current policy, a birth certificate is normally considered proof of genetic parentage. Obviously, this standard cannot apply to same-sex couples.
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Ernest
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« Reply #6 on: March 10, 2019, 09:43:33 pm »



edit: also I'm pretty sure there's some unconstitutional violation of privacy going on here as well

You've quoted the language used by the judge, but I don't see why it is cut and dry at the moment that the judge is wrong, and certainly not 'obvious'. For most all things, the judge is clearly correct that there is no need to prove parentage when the parents are married, but it definitely would should citizenship by parentage be biologically grounded. I don't see in this case that State is treating them differently arbitrarily - it doesn't have to do directly with their same-sex marriage but with their infertility, which is inherent to that. 

Yet I doubt current procedure would require a non-citizen mother married to a citizen father to prove that her child had her husband as the biological father. Applying that standard only in the case of same-sex marriages is discriminatory.

From my reading of current policy, a birth certificate is normally considered proof of genetic parentage. Obviously, this standard cannot apply to same-sex couples.

Then in order to be nondisciminatory, it can't apply to opposite sex couples either.

Leaving aside the issue of whether it makes sense for a birth certificate to list the two members of a same-sex couple as the birth parents, at worst doing so indicates that the kid has been legally adopted by the citizen parent and thus eligible for citizenship.
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Karpatsky
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« Reply #7 on: March 10, 2019, 09:45:32 pm »



edit: also I'm pretty sure there's some unconstitutional violation of privacy going on here as well

You've quoted the language used by the judge, but I don't see why it is cut and dry at the moment that the judge is wrong, and certainly not 'obvious'. For most all things, the judge is clearly correct that there is no need to prove parentage when the parents are married, but it definitely would should citizenship by parentage be biologically grounded. I don't see in this case that State is treating them differently arbitrarily - it doesn't have to do directly with their same-sex marriage but with their infertility, which is inherent to that. 

Yet I doubt current procedure would require a non-citizen mother married to a citizen father to prove that her child had her husband as the biological father. Applying that standard only in the case of same-sex marriages is discriminatory.

From my reading of current policy, a birth certificate is normally considered proof of genetic parentage. Obviously, this standard cannot apply to same-sex couples.

Then in order to be nondisciminatory, it can't apply to opposite sex couples either.

Leaving aside the issue of whether it makes sense for a birth certificate to list the two members of a same-sex couple as the birth parents, at worst doing so indicates that the kid has been legally adopted by the citizen parent and thus eligible for citizenship.

Good point. Perhaps then the likely outcome of all of this will be stricter requirements of proof of parentage for non-US citizen mothers.
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