Georgia Same-Sex Couple Sues Over Denial of Child's Citizenship

A same-sex couple in Georgia filed suit Tuesday against the State Department for failure to recognize the citizenship of their daughter.

Derek Mize and Jonathan Gregg's daughter, Simone Mize-Gregg, was born via surrogacy in England in 2018. "Because only one of Simone's fathers has a biological connection to her, the State Department is disregarding Jonathan and Derek's marriage and is treating Simone as though she was born out of wedlock, a classification which requires more stringent requirements for recognition of her citizenship," says a press release from Lambda Legal, which is representing the couple, along with Immigration Equality and pro bono counsel Morgan Lewis.

Under the Immigration and Nationality Act, children of married U.S. citizens born abroad are U.S. citizens from birth as long as one of their parents has lived in the U.S. at some point, but the State Department routinely denies that right to same-sex couples and their children, according to the release. "While different-sex couples are automatically presumed to both be parents of their children, same-sex couples are subjected to invasive questioning about how they brought their child into their family, and because one parent is not a biological parent, they are treated as if they are not married, and their children are not recognized as citizens unless the biological parent can meet additional criteria," the release explains.

Mize and Gregg, who now live in Decatur, Ga., are both U.S. citizens. Mize was born in Mississippi, while Gregg was born in London to an American mother and British father, and has dual U.S. and U.K. citizenship. They married in New York in 2015 and moved to Georgia in 2017. A friend of theirs in England agreed to give birth to their daughter, conceived with an anonymous donor's egg and Gregg's sperm. Each man had given sperm to be used in the process, but an embryo created with Mize's sperm did not result in pregnancy, and one created with Gregg's sperm did, according to their lawsuit. Both are listed as parents on Simone's U.K. birth certificate.

In March of this year, the fathers applied for a Social Security number for Simone, but a worker at their local Social Security Administration office told them they needed additional evidence of her U.S. citizenship and advised them to address the matter at the U.S. Embassy in London. They went to London in April, and after several hours at the embassy were told that she did not qualify for citizenship at birth because Gregg, the biological father, had not been physically present in the U.S. for the minimum five years required before she was born. The U.S. government did not recognize Mize as a father and treated the couple's marriage as invalid, according to their suit. Simone was granted a tourist visa from the U.K. to stay in the U.S., but that expires soon, and when it does, she will not have legal status here.

"The State Department's policy and practice of excluding the children of married same-sex parents from the right of birth citizenship set forth in Section 301 is contrary to the INA, is arbitrary and capricious, and violates the statutory and constitutional rights of children and parents," the lawsuit states.

There have been several other cases of the denial of birth citizenship to same-sex couples' children, which lawyers with Lambda and Immigration Equality say violates the Supreme Court's marriage equality ruling. A federal judge this year ruled in favor of a Los Angeles couple who sued, but the State Department is appealing.

"The State Department's policy is not only cruel, it is unconstitutional. The government refuses to recognize Jonathan and Derek's marriage and all of Simone's rights as a U.S. citizen," Aaron C. Morris, executive director of Immigration Equality and one of the couple's attorneys, said in the press release. "The fight for marriage equality is not over, and we will not stand down until the State Department changes its unlawful policy."

The suit was filed in U.S. District Court for the Northern District of Georgia and names the State Department and Secretary of State Mike Pompeo as defendants. The Associated Press sought comment from the State Department, which declined to discuss pending litigation.