‘Rainbow Statelessness’
international ART cases has been argued to put children at risk of statelessness, 103
there is growing evidence that LGBTIQ+ parents have recently been subject to
greater levels of scrutiny to determine biological parenthood than applies to
heteronormative married couples.
The most high-profile cases of children born to rainbow families being denied
US citizenship have been represented by legal defence actors, Lambda Legal and
Immigration Equality. 104 The Department of State has ruled in contradiction of the
principle of ‘birth-right citizenship’ where any child born to a US citizen
automatically becomes a citizen also, on the argument that since one of the parents
is not biologically related to the child, the child has been ‘born out of wedlock’. 105
Immigration Equality has referred to this as ‘a new double standard for citizenship:
one for the children of gay couples and one for the children of straight couples’. 106
It is noted that most of these children have not in fact been at risk of statelessness
since the surrogacy or other assisted reproductive arrangements took place in
countries where jus soli nationality laws operate (eg Canada) and safeguards
against being born statelessness are in place. That said, the practices of insisting
on biological rather than intentional interpretations of parentage in cases of samesex relationships have the potential to result in statelessness in cases where the
constellation of circumstances is different.
While far from an exhaustive survey of cases where children born within the
context of rainbow families have been (at risk of becoming) stateless, the above
selection presents a strong basis for considering that LGBTIQ+ parents face
particular vulnerability in securing citizenship for their children when using ART
within an international dimension. Given that same-sex couples are known to be a
key demographic within the clients for international surrogacy, further research is
needed to better understand the unique risks that might affect this profile of
parents.
CONCLUSION
The testimonies and situations presented in the above sections provide support for
the argument that a SOGIESC–statelessness nexus does indeed exist. The
identification of cases relating to all world regions — that is Asia and the Pacific,
the Middle East and North Africa, the Americas, Africa and Europe —
demonstrates the global scope of this nexus. This is perhaps unsurprising given
103 Brittany M Nichol, ‘A Child Without a Country: Dissolving the Statelessness of Children
Born through Surrogacy’ [2016] (3) Michigan State Law Review 907.
104 ‘Children Born Abroad to Married US Same-Sex Parents Are US Citizens, Lambda Legal
Tells
Courts’,
Lambda
Legal
(Blog
Post,
16
January
2020)
<https://www.lambdalegal.org/blog/20200116_kiviti-and-mize-gregg-msj-filing>; ‘Fight for
Families!
Update’,
Immigration
Equality
(Update,
2020)
<https://www.immigrationequality.org/fightforfamilies/#.XiQ9BFMzY1i>. See also Jennifer
Hansler, ‘Trump Admin is Denying Citizenship to Some Children of Same-Sex Couples’,
CNN (online, 18 May 2019) <https://edition.cnn.com/2019/05/17/politics/kiviti-child-uspassport/index.html>.
105 Susanna Heller, ‘The Trump Administration is Denying Citizenship to the Children of SameSex Couples Because They Were Born “Out of Wedlock”’, Insider (online, 15 May 2019)
<https://www.insider.com/trump-state-department-denied-citizenship-to-same-sex-coupleschildren-2019-5>.
106 Scott Bixby, ‘State Department Continues Fight to Strip Gay Couple’s Two-Year-Old Son of
Birthright
Citizenship’,
Daily
Beast
(online,
8
May
2019)
<https://www.thedailybeast.com/state-department-continues-fight-to-strip-gay-couples-twoyear-old-son-of-birthright-citizenship>.
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