American Andrew met his future husband, Elad, in Israel. They married in Canada, and had twin boys — Aidan, and Ethan, one fathered by each man — with a surrogate. When the U.S. Supreme Court handed down Obergefell v. Hodges, they decided to move to California to be closer to Andrew’s family. It did not go as planned.
A few months after Ethan’s citizenship had been denied, the Dvash-Banks family landed in Los Angeles. Andrew and Aiden carried their US passports; Elad carried his Israeli passport and a green card. Ethan passed through US customs at LAX with a Canadian passport and a six-month tourist visa. What they would do next was anyone’s guess, but at the very least they were determined to live the life they had planned as an American family for as long as they could.
“Of all the hundreds and hundreds of things I worried about, this one never crossed my mind,” Andrew said of the ordeal. “How could it? They’re both my children. I’m on both birth certificates, Elad is on both birth certificates—exclusively. No one else appears on the birth certificates. I am the legal father. I am the father of both children. It never would have crossed my mind in a million years.”
Now, LGBTQ immigration rights organization Immigration Equality is bringing a lawsuit on their behalf, hoping to highlight the ways in which immigration law is not keeping up with reproductive technologies and changing definitions of family. Raj Telhan‘s story at VQR is a comprehensive, accessible dive into the history and future of U.S. immigration law, what makes a citizen, and what makes a family.
Immigration Equality also argues that the sections of the INA concerned with citizenship (as opposed to immigration), do not include specific definitions of the terms “parent,” “person,” “mother,” “father,” and “out of wedlock” that are being used by the State Department to impose a genetic threshold for parentage on married same-sex couples like Andrew and Elad. This last intriguing argument essentially amounts to a critique of the State Department’s reading of the statutory language of the INA. Tacitly, the complaint asks what we really mean by parent or mother or father. And more profoundly: What, precisely, is family? And this is where the precedent-setting power of the Dvash-Banks case stems from. Until recently, these definitions were taken for granted, their interpretations rooted in age-old understandings of hereditary bonds. With advances in assisted-reproductive technology, however, the supposedly reliable assumptions don’t always hold. The outcome of the Dvash-Banks family’s case will hinge, in part, on whether the courts acknowledge the biotechnological and social forces that have transfigured traditional definitions of family.