Judge Michael L. Brown, a district court judge from the Northern District of Georgia, Atlanta Division issued a decision requiring the U.S. Department of State to effectively recognize citizenship for the child of James Derek Mize and Jonathan Daniel Gregg. The U.S. Department of State had previously denied the child citizenship concluding she was not a U.S. citizen at birth.

The Mize-Gregg Family

James Derek Mize and Jonathan Daniel Gregg are U.S. citizens married to one another. In 2018, the couple had a child using Gregg’s DNA, an anonymously donated egg, and a gestational surrogate in England to carry the child until birth. The child, born in England, was issued a birth certificate listing Mize and Gregg as her parents. The couple later applied for a U.S. passport and other proofs of citizenship for their daughter.

The U.S. Department of State stated that she did not qualify for citizenship concluding that the child was not a U.S. citizen at birth because she shared a biological relationship with only one of her citizen parents, Gregg, who had not been physically present in the United States long for long enough to qualify. The Court opined that the U.S. Department of State was treating the child as she had been born out of wedlock when Mize and Gregg had been married.

Judge Brown referencing 1998 Supreme Court Case Miller v. Albright, 523 U.S. 420, 423, provided “‘There are two sources of citizenship, and only two: birth and naturalization.’ The case is about the former.” Based on the Fourteenth Amendment, persons born in the United States are conferred citizenship and persons born abroad acquire citizenship by birth only as provided by Congress.

Citizenship of Marital Children

The Court acknowledged that Congress governs birthright citizenship through the Immigration and National Act (the Act) and Section 301 of the Act makes citizenship for foreign-born children dependent on the child’s parents. Under the provisions of the Act, the Court reminded that “married parents who are both citizens pass citizenship to their child at birth so long as either parent had a residence in the United States (or an outlying possession) prior to birth. On the other hand, if only one married parent is a citizen, the couple passes citizenship to their child at birth only if the citizen parent has lived in the United States (or an outlying possession) for at least five years.”

Citizenship of Nonmarital Children

For nonmarital children, the rules vary depending on whether citizenship is sought through the father or the mother.

Section 301 above applies if through the father, (1) a blood relationship between the person and the father is established by clear and convincing evidence, (2) the father had the nationality of the United States at the time of the person’s birth, (3) the father (unless deceased) has agreed in writing to provide financial support for the person until the person reaches the age of 18 years, and (4) while the person is under the age of 18 years— (A) the person is legitimated under the law of the person’s residence or domicile, (B) the father acknowledges paternity of the person in writing under oath, or (C) the paternity of the person is established by adjudication of a competent court.

If citizenship is sought through the mother, Section 309(c) of the Act provides, “Notwithstanding the provision of subsection (a) of this section, a person born, after December 23, 1952, outside the United States and out of wedlock shall be held to have acquired at birth the nationality status of his mother, if the mother had the nationality of the United States at the time of such person’s birth, and if the mother had previously been physically present in the United States or one of its outlying possessions for a continuous period of one year.”

“Born of”, Biological Readings, and the Court’s Decision

Concluding that the keywords, and the ordinary meaning and statutory context of the statutory words “born of” regarding the child being born of the parents, could be easily interpreted to mean that Section 301 need not require both parents be biologically related to the child. The Court reviewed the ordinary meaning and the statutory context of the Act and determined that Section 301 does not require a biological reading, meaning that the child does not need to be related biologically to both parents in order to obtain citizenship by birth. The Court concluded that the child of the Mize-Gregg family is a U.S. citizen under the Act and is entitled to a U.S. passport. Effectively, Judge Brown found that the requirement that both parents be biologically related denies same-sex couples the benefits of marriage granted by the Supreme Court Case Obergefell v. Hodges. “This includes equal access not just to the ‘symbolic recognition’ of marriage but also the ‘material benefits’ that come with it. Id.

The organization assisting the Mize-Gregg Family, Lambda Legal issued a press release, “We are so relieved that the court has recognized our daughter, Simone, as the U.S. citizen she has been since the day she was born. When we brought Simone into this world, as married, same-sex parents, we never anticipated our own government would disrespect our family and refuse to recognize our daughter as a U.S. citizen.”

This is a momentous decision that may shape how same-sex couples and their children’s citizenship are granted. If you have any questions or are in need of legal assistance, please contact our knowledgeable staff at International Legal and Business Services Group, LLP.

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