Forty years ago, Monty Python’s Life of Brian used the elementary reality that men don’t have wombs, and therefore can’t gestate babies, to ridicule a revolutionary’s fight for his “right to have babies.” As a fellow revolutionary pointed out (and everyone at the time understood), his supposed “struggle against oppression” was in fact a “struggle against reality.”
Last Thursday, a federal district judge in Georgia—a Trump appointee, no less—lost that same struggle against reality and instead rewrote federal law governing conferral of citizenship at birth to compensate for the fact that men can’t gestate babies. The ruling piggybacks on a similar ruling in June from a federal district judge in Maryland (in Kiviti v. Pompeo).
Federal law defines when children born outside the United States are citizens at birth. The provisions are somewhat complicated, so bear with my effort to present them simply. (I’ll omit some details that aren’t relevant.)
Section 301(c) of the Immigration and Nationality Act (8 U.SC. § 1401(c)) generally confers citizenship at birth on “a person born outside of the United States … of parents both of whom are citizens of the United States.” But when one of the parents of a child born abroad is an alien and the other is a U.S. citizen, section 301(g) sets forth a different rule. In order for that child to be a citizen at birth, the citizen parent must, before the birth, have been physically present in the United States for periods totaling at least five years. In connection with both of these provisions, section 309 (8 U.S.C. § 1409) adds further requirements for children “born out of wedlock.”
Understanding “born … of parents” biologically, the federal government has forever understood and applied section 301(c) to require that the child have a biological relationship with both parents. If Carol cheats on her husband Bob and has a child with Ted, it would make no sense to say that the child was born of Carol and Bob. That child is instead “born out of wedlock.” Likewise, even if Bob and Carol, as an infertile couple, decide they want a child and arrange with Ted to inseminate Carol, the ensuing child would not be “born … of” Carol and Bob within the meaning of section 301(c) but would be “born out of wedlock.”
Let’s take a more complicated example from our Brave New World of artificial reproductive technologies: Bob, an American citizen, has lived in the United States for just six months. He is married to Carol, an American citizen. Unable to conceive children together, they arrange to manufacture a child by using Bob’s sperm, an anonymously donated egg, and a gestational surrogate (not a U.S. citizen) in England. The surrogate gives birth to the child in England. The child is not born of Bob and Carol. Instead, because Bob and the surrogate aren’t married, the child is born out of wedlock. Because Bob hasn’t satisfied the requirement of five years of physical presence in the United States, the child is not a U.S. citizen at birth.
The ruling last Friday in Mize v. Pompeo arose in circumstances just like Bob’s, except that instead of being married to Carol, Bob is married to Ted. Even though the law in this scenario applies to Bob and Ted exactly as it would to Bob and Carol, federal district judge Michael L. Brown thought it necessary to reconceive (no pun intended) section 301(c) to ensure that same-sex couples have the same “material benefits” of marriage as opposite-sex couples.
One of those material benefits, Brown asserts, might “reasonably” be thought to be the ability “to confer birthright citizenship on their foreign-born children.” But because “it is impossible for two men to be related biologically to the same child,” the long-established reading of section 301(c) that requires a biological relationship between the child and the parents “would raise serious constitutional questions” and should therefore be jettisoned under the doctrine of constitutional avoidance. Instead, according to Brown, a child is “born … of parents” if the child “originated” from those parents, and this fuzzy concept of origination is broad enough to cover a situation in which “two married parents both play a fundamental and instrumental role in the creation of the child, for example by, as here, together planning and supporting the use of surrogacy and ART to bring about the birth of a child to whom they have both committed in advance to be a parent.” (Quoting Kiviti (internal quotations omitted.)
So much for “we are all textualists now.”
By the way, the child in this case had already become a U.S. citizen via naturalization.
I’ll also note that Brown observes that same-sex male couples are at a disadvantage compared to same-sex female couples. As he explains, the federal government now allows a woman to establish a biological relationship with a child (for purposes of section 301(c)) either by being the genetic mother or the gestational mother. What’s more, “when two married women who are citizens decide one of them will carry an egg donated from the other and fertilized by an anonymous sperm donor, … that child is considered to have been born in wedlock of two U.S. citizens.” That position strikes me as highly dubious: the fact that neither woman is married to the biological father ought to mean that the child is “born out of wedlock.” But whatever its merits, that position doesn’t provide any foundation for Brown’s ruling (as Brown himself seems to recognize).