Andrew and Elad Dvash-Banks wed in Canada in 2010 and were excited to move to the U.S. after their twin sons were born in 2016. However, that joy soon turned to mourning when they learned the government refused to grant one of their 2-year-olds citizenship.
“He should be treated as any other child born to a U.S. citizen like his twin brother or like any other child born to a U.S. citizen abroad,” Andrew, who is from Los Angeles, said in a YouTube video about the incident. “We came to the United States and moved here but one of our sons entered on a tourist visa and entered on a tourist status.”
The couple’s sons, Ethan and Aiden, were born via surrogacy in Canada, with each boy conceived using a donor egg and sperm from one of the two men. Because Elad is from Tel Aviv, Andrew became a sponsor for his husband’s green card, granting Elad U.S. citizenship as a green card holder. According to the U.S. Citizenship and Immigration Services, a child born abroad may become a U.S. citizenship at birth.
Even though Elad is a green card holder, authorities refuse to recognize the couple’s son Ethan as a citizen because of his biological connection to Elad. Aiden received a passport but Ethan did not.
“The State Department policy discriminates against same-sex couples because it does not respect the validity of their marriages,” Aaron C. Morris, the couple’s attorney and executive director of Immigration Equality, says in a statement to PEOPLE.
“There is no biological relationship requirement in the law for married U.S. citizens to pass on birthright citizenship to their children. The State Department is treating same-sex couples as if their children are born out-of-wedlock,” Morris says.
Immigration Equality is providing counsel to the couple.
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The parents sued through Immigration Equality and, in February, a California judge ordered the State Department to issue a passport to Ethan. However, the State Department has appealed the ruling, continuing its efforts to deny Ethan birthright citizenship.
“We’re outraged that the State Department is so intent on harming our family and the LGBTQ community,” the couple says in a statement to PEOPLE. “The fight is not over, and we will not rest until our family is treated fairly and equally. Nothing can tear us apart. The four of us are unbreakable.”
The State Department did not immediately respond to a request for comment from PEOPLE.
Morris told NBC News that it is established that citizenship may pass from a “married parent to a child regardless of whether or not they have a biological relationship.”
For now, Ethan will remain a U.S. citizen due to the California judge’s ruling, but the 9th Circuit Court of Appeals will hear oral arguments in the State Department’s appeal, a spokesperson for Immigration Equality confirms to PEOPLE.
“The government’s decision to try to strip Ethan of his citizenship is unconstitutional, discriminatory, and morally reprehensible,” Morris told NBC.