(JTA) — A same-sex couple from Maryland is suing the U.S. State Department for refusing to grant birthright citizenship to their infant daughter.
Kessem Kiviti, who is 6 months old, was born via surrogacy in Canada, according to the LGBTQ immigrants’ rights organization Immigration Equality. She is the daughter of Roee and Adiel Kiviti, who are both American citizens. But Kessem’s biological relationship is to Adiel, who was born in Israel and became a U.S. citizen in January. Adiel falls one year short of meeting the five-year residency requirement to transfer citizenship.
Roee also is an Israel native and grew up in Southern California; he became a U.S. citizen in 1993. The couple married in October 2013 in California and lived abroad until they moved back to the United States in 2015.
They have a son, Lev, who was born in Canada in 2016 through surrogacy and has been recognized as a U.S. citizen since birth.
The Kivitis received official notice of the rejection in early July. Kessem is currently residing in the U.S. on a tourist visa. They filed a lawsuit challenging the rejection last week in U.S. District Court in Maryland with Immigration Equality and Lambda Legal.
Despite Roee and Adiel’s marriage, the State Department is treating Kessem as being “born out of wedlock,” and since her biological relationship is to Adiel she was denied citizenship — a requirement that is not placed on children of married U.S. citizens, according to Immigration Equality.
“We were there when (Kessem) was first born, when she took her first breath, when she first cried,” Roee Kiviti told CNN. “We were the first people to hold her, we gave her her first feeding, her first bath. She first slept on our chests. We are her only parents, the only parents she’s ever known.
“We are her parents as much as your children are yours. And to have that questioned is unsettling.”
Another Jewish couple, Andrew Dvash-Banks, an American, and Elad Dvash-Banks, an Israeli, challenged a State Department denial of citizenship to one of their twin sons after a required DNA test showed that one of the babies was biologically related to the Israeli parent though both of the father’s names were listed on the birth certificates. They won their case in February in federal court in Los Angeles, with the judge ruling that U.S. law does not require a child to show a biological relationship with their parents if their parents were married at the time of their birth.
The State Department is appealing that decision.