Jus Sanguinis or Just Plain Discrimination? Rejecting a Biological Requirement for Birthright Citizenship of Children Born Abroad to Same-Sex Couples Via Assisted Reproductive Technology

Until recently, the State Department had a policy deeming children born abroad to married same-sex couples to be children born out of wedlock. Then, applying the statute for children born out of wedlock with more rigorous requirements, the State Department only allowed citizenship to pass through a biological relationship between the biological parent and the child. Although the State Department updated this policy in May 2021 to allow for birthright citizenship of children born abroad to married same-sex couples, the new policy does not go far enough. This Note argues that Congress should amend the Immigration and Nationality Act to allow passage of birthright citizenship regardless of marital status based on intentional parentage rather than biology.

This Note also argues that Congress should eliminate Section 309 of the Immigration and Nationality Act to eradicate distinctions between births in and out of wedlock in order to eliminate discriminatory treatment based on sexual orientation, gender identity, and marital status.