Despite the legality of gay marriage in California and throughout the United States following a landmark Supreme Court decision, families using surrogacy have continued to face difficulty obtaining U.S. citizenship for their children. One couple has filed a lawsuit challenging the State Department after their daughter was classified as being born “out of wedlock” and denied citizenship. A surrogate in Canada gave birth to the child. The complaint says that her parents were treated as an unmarried couple because they are gay and that she was denied a U.S. passport.

Their case is at least the fourth challenging the State Department’s citizenship policy in these cases. The couple calls their approach “state-sponsored discrimination”. The family’s lawyers said that the policy shows disregard for same-sex marriages. The couple involved in the case are both naturalized citizens originally born in Israel. They married in 2013 in California and had their son with the surrogate in Canada in 2016. Their son received citizenship right away.

However, when they had their daughter with the surrogate in 2019, they used the sperm of the partner who had been a U.S. citizen only since 2015. After they filed for her passport, the State Department denied her citizenship claim, classifying her as a child born out of wedlock. Her biological father was reportedly unable to pass on citizenship, as he had not yet lived in the U.S. for five years. They said that she did not have a biological relationship to the other spouse, who would be able to pass on his citizenship. However, this biological requirement has not been imposed for opposite-sex married couples.

The couple is seeking a ruling that their daughter is a U.S. citizen. People who are navigating the naturalization system can work with an attorney to protect their rights throughout the process.