At just 16 months old, Ethan Dvash-Banks became a plaintiff in a federal lawsuit against the U.S. State Department. That's because while his twin brother, Aiden, is considered an American citizen at birth, Ethan's application was rejected.
The boys' parents, a gay couple now living in California, are furious about the decision, saying that it stems from the State Department's discrimination against same-sex binational couples.
Both Aiden and Ethan were born via a surrogate mom just minutes apart in September 2016. However, each boy was conceived by sperm from different fathers. Aiden's biological dad, Andrew Dvash-Banks, is a U.S. citizen, and Ethan's biological dad, Elad Dvash-Banks, is an Israeli citizen.
Andrew met Elad when he was studying in Israel. Realizing that they couldn't marry in the U.S. or in Israel, they moved to Canada and got married in 2010. Months after the twins were born, they brought their children to the American consulate in Toronto to register their sons and apply for U.S. passports.
The last thing they expected was for the consular official to ask probing and humiliating questions. The couple told NBC News that the official required a DNA test to show who the biological father was of each boy. If they didn't submit the tests, neither son would get citizenship. Andrew and Elad, who are the only parents named on the children's birth certificates, had always wanted to keep that detail a secret.
"No one, not even our parents, knew," Andrew told the Washington Post. "We just wanted to stress that we are a family. The four of us are unbreakable."
But they saw no other choice but to submit the DNA test results.
On March 2, 2017, the family received Aiden's passport and a letter notifying them that Ethan's application had been denied.
While the State Department isn't commenting on pending litigation, the department's website says that in order to transfer a parent's U.S. citizenship, "a child born abroad must be biologically related to a U.S. citizen parent."
Andrew and Elad argue that the rule the State Department applied to their case is specifically for "children born out of wedlock." The correct policy that should be applied to their case is Act 301 of the Immigration and Nationality Act, which doesn't mention a "blood relationship" to be necessary. The Act allows children to inherit their married parents' U.S. citizenship if the adult meets certain requirements, for instance, if he or she has lived in the U.S. for at least five years, at least two of which were after the age of 14.
"The agency’s policy unconstitutionally disregards the dignity and sanctity of same-sex marriages by refusing to recognize the birthright citizenship of the children of married same-sex couples," the lawsuit states. "The State Department’s policy is arbitrary, capricious and serves no rational, legitimate or substantial government interest."
Immigration Equality, a leading LGBTQ immigrant rights group, filed the Dvash-Banks lawsuit along with another similar case. Allison Blixt, a U.S. citizen, and Stefania Zaccari, an Italian citizen, met in New York and got married in London. Each gave birth to a son, and both women were listed on the boys' birth certificates in England, but the U.S. only granted citizenship to the baby born from Blixt.
"They are not giving these parents the marital presumption, so at best they are treating their marriage as lesser than an opposite-sex marriage," Aaron Morris, executive director of Immigration Equality, told NBC News.
Ethan’s tourist visa expired in December and the toddler currently does not have legal status. Andrew has applied for a green card for the toddler.
Image via AP Photo/Jae C. Hong