Neither legal or biological parentage are relevant to birthright citizenship.
"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)
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:
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
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
