Court: Son born abroad to gay couple is a U.S. citizen

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FILE - This Jan. 23, 2018, file photo shows 16-month-old Ethan Dvash-Banks, left, and his twin brother, Aiden, playing in the living room of their apartment in Los Angeles. A federal appeals court has ruled against the U.S. State Department in its quest to deny the citizenship of the son born abroad to a gay married couple. In a decision issued Oct. 9, 2020, the 9th U.S. Circuit Court of Appeals unanimously upheld a lower court ruling recognizing the citizenship from birth of Ethan Dvash-Banks, a twin boy born abroad by surrogacy to Andrew and Elad Dvash-Banks, a married gay couple. (AP Photo/Jae C. Hong, File)

LOS ANGELES – A federal appeals court has ruled against the U.S. State Department in its quest to deny the citizenship of one of two twins born abroad to a gay married couple.

The 9th U.S. Circuit Court of Appeals said Friday that a Los Angeles trial judge correctly concluded that 4-year-old Ethan Dvash-Banks was an American citizen despite being conceived with sperm of an Israeli father and born in Canada using a surrogate mother.

The boy's other father is a U.S. citizen, and the law does not require a child to show a biological relationship if their parents were married at the time of their birth, a U.S. District Court judge ruled last year. The boy was granted a passport after the ruling, but the State Department appealed.

A three-judge panel ruled unanimously that it was bound by precedent from previous decisions and issued a short memorandum without hearing arguments.

Andrew Dvash-Banks, the father who is a U.S. citizen, said he was thrilled by the ruling that affirms his son's citizenship and removes uncertainty that has hung over the family for nearly four years.

While the twins are still too young to understand what their parents have gone through, the fathers set up email accounts to create a sort of digital journal the boys can read some day. Dvash-Banks said he planned to email them tonight with a copy of the ruling and thoughts on the latest development.

“We want both to know how much we love then and how much we fight for them,” he said. “The fact that they’re twins and not being treated equally, we want them to know that we did everything to make that right and we were successful.”

Before the boys were out of diapers, Ethan was a plaintiff in the unusual case that arose after the American consulate in Toronto denied his citizenship after requiring DNA tests that showed he was the biological son of Elad Dvash-Banks, an Israeli citizen.