Updated: August 15, 2022
This summer, James Derek Mize and his husband, Jonathan Gregg, celebrated their daughter’s first birthday at home in Atlanta with a party that coincided with WorldPride. Dressed in a rainbow outfit, the birthday girl, Simone, did what toddlers are bound to do: Took a fleeting glance at her presents and instead found delight in her favorite “toy,” an outdoor water hose.
It was a memorable day for the family, her parents recalled. It was also a respite from the looming reality that Simone, who was born abroad with the help of a surrogate, would soon be at risk of being removed from the country that is her home.
“I try not to think about ICE coming to our door and deporting our baby,” Mr. Mize said in an interview last week. “That is a pretty hard thing to think about.”
On Tuesday, the couple filed a discrimination lawsuit against Secretary of State Mike Pompeo over the department’s decision to deny citizenship to Simone, even though both Mr. Mize and Mr. Gregg are American.
The case centers on a State Department policy that affects children born abroad through assisted reproductive technology. The policy focuses on showing biological parentage in order to transmit citizenship. It has come under intense scrutiny for its effect on same-sex couples, who cannot conceive on their own and are often surprised that their children do not qualify for citizenship at birth.
At least two other same-sex couples are suing the State Department for similar reasons. Last month, nearly 100 Democratic members of Congress called on Mr. Pompeo to reverse the policy, which they called “cruel” and “deeply disturbing.”
The Mize-Gregg family’s situation was highlighted in a New York Times article this year: Mr. Mize, born and raised in the United States, is a citizen. Mr. Gregg, born in Britain to an American mother, is an American citizen as well. The couple, who married in 2015 in the United States, decided to start a family with the help of a close British friend, who offered to be their surrogate.
Simone was born in Britain last year, using a donor egg and the sperm of her British-born father. Her fathers were in the delivery room, the lawsuit says, and they are the only parents listed on her birth certificate.
But when the family returned to their home in the Atlanta area and later applied for Simone’s American passport, they were denied.
The State Department’s focus on biological parentage means that if the source of the sperm and egg do not match married parents, the case can be treated as “out of wedlock,” a designation that comes with a higher bar to transmit citizenship.
Mr. Gregg, who moved to the United States to be with his husband, did not meet a five-year residency requirement. His lawyers say that requirement would not have applied if they had been treated as the married couple they are.
For two married United States citizens, “all the law requires is that one of them lived in America for at least one day,” said Aaron Morris, the executive director of Immigration Equality, which has worked on all three lawsuits.
“Marriage is so fundamental to how you define a family,” he said. “To disenfranchise a little girl of citizenship because she has two dads is invidious discrimination that has been struck down time and time again.”
The State Department declined to comment on Tuesday, citing pending litigation. In court documents, the department has argued that the policy does not discriminate and applies to opposite-sex and same-sex couples alike.
But gay couples argue that they are far more likely to be questioned about their conception methods when applying for citizenship. Immigration Equality said that it had heard from at least three dozen families in similar situations since mid-2017; by the organization’s account, most were same-sex couples.
In court documents, the State Department has said that rules for passing down citizenship for children born abroad are important for preventing fraud and ensuring that children born abroad have a sufficient connection to the United States to warrant citizenship.
The policy on assisted reproductive technology is based on an interpretation of immigration law, which includes language that children are “born” of their parents and mentions a “blood relationship” in certain cases.
Karen Loewy, a lawyer with Lambda Legal, said that the State 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,” said Ms. Loewy, who worked with Immigration Equality on the case.
While the policy has existed in some form for years, the issue took on new urgency after the Supreme Court recognized same-sex marriages in 2015.
Under the Obama administration, the State Department adjusted the requirement so that a parent could also establish a biological connection by giving birth, in addition to supplying the egg or sperm. That allows a lesbian couple to have a child “in wedlock” if one woman provides the egg and the other carries the baby.
Under the Trump administration, the State Department is fighting the lawsuits in court, a move that critics argue is in line with other efforts by the administration to roll back protections for gay, bisexual and transgender people.
In one case, a married Israeli-American gay couple had twin sons in Canada using sperm from each of the fathers. The biological son of the American received citizenship, but his brother, the biological son of the Israeli, did not. In a ruling this year, a federal judge sided with the couple, calling the department’s interpretation of the immigration law “strained.” The State Department is appealing.
The government is also facing a similar suit from a lesbian couple in London. One woman is American and the other is Italian. The women took turns conceiving and carrying their two children. Only the child born to the American mother was granted citizenship.
On a recent visit to New York to celebrate Pride, one of the mothers, Allison Blixt, said she worried that their son, now 4, would soon start to ask questions. “We walk up with all these passports and at some point, Lucas is going to notice that his is different,” she said.
The Mize-Gregg family said they were wary of adding their names to the list. Mr. Gregg, who works as a management consultant while his husband stays home to care for Simone, learned he had a benign brain tumor last year and underwent surgery to have it removed, all while raising an infant, the family said. They weren’t sure they had the energy for a legal fight.
“We just kept returning to how we would be telling this story to Simone later in life,” Mr. Mize said. “We never want her to think we didn’t fight for her.”
There were also practical considerations.
Simone’s tourist visa will expire at the end of July, according to the family and their lawyers.
She will not be permitted to go outside the country, leaving her unable to travel to her grandparents and relatives abroad. “We cannot visit them,” Mr. Gregg said. “She is land locked.”
She does not have a Social Security number, her family said, and her parents were not able to claim her as a dependent on their tax returns.
And without citizenship at birth, she would not have certain rights in the future, such as the ability to run for president.
“We are very conscious that this first year of Simone’s life is very special and precious, and we will never get it back,” Mr. Mize said. “We are trying every day to live in the moment and to enjoy this time despite what is happening.”
He said there had been plenty of parenting moments to treasure in recent weeks: Simone learning to walk. Simone bouncing in the living room to her favorite song, “Baby Shark.” Simone saying her first words.
“She points at us,” he said, “and says, ‘Dada.’”
Sarah Mervosh covers breaking news from New York. She was previously an investigative reporter at The Dallas Morning News.