Parenting LGBTQ + and being parents with different citizenships can each pose significant legal risks to a family. Combine the two and a number of cases have emerged where questionable interpretations by federal law have placed families in dire positions. This has at times resulted in governments failing to recognize the parent-child relationship between one or more parents and the child, or denying a child’s citizenship. Probably the best-known example in the United States is the Dvash-Banks case, in which a child’s twin brother was granted US citizenship while denied it.
In the United States, the battle is not over
In the United States, the not-for-profit law firm Immigration Equality recently publicly fought four such cases, making great strides for those capable of questioning the validity of their families. In the double case of Dvash-Banks, the federal government – represented by the Ministry of Justice – lost before the district court and before the court of appeal of the 9th district. You would think that would be enough for the government to let it go. No The government recently filed a motion to hear the Ninth Circle’s decision to reconsider Ethan Dvash-Banks’ case and see whether he has the same US citizenship as his twin brother Aiden. With luck, the new Biden government will ask their DOJ to reconsider their lost legal position and to drop this motion.
Positive Israeli decision
Much like the United States, Israel has a long and mixed history of LGBTQ + rights and families. Last week in Israeli courts we saw news of a positive step forward. A female couple in Israel has been fighting for the judicial recognition of both women as parents of their child since 2018. The couple is married under general law, with one woman holding Israeli and German citizenship.
The Jerusalem Post reported the verdict and found that the couple were conceived with the help of a sperm donor from a California sperm bank. Israel has very specific regulations for sperm donation within the country, including the fact that donation must be anonymous. This strict rule has led to the notorious American “sperm king” donor Ari Nagel being banned from donating in Israel.
In good news, the Tel Aviv Family Court granted the couple’s motion to recognize the nonbiological mother as the child’s parent. In bad news, the government appealed the decision to the district court. In good news, what I was told, the government made some not great legal arguments in favor of Israeli courts.
One of the state’s arguments against parental recognition of the nonbiological mother was based on the fact that her temporary Israeli visa was continuously renewed. The state argued that any parental order decision should wait until their residential status is determined. Because – wait for it – the mother could be ordered to leave the country, which could negatively affect the child. Yes, it would certainly have a negative effect on a child if one of its parents were deported. But one thing that would make deportation not better – but worse – is that the state refuses to recognize this parent-child relationship.
Another argument put forward by the state was that a decision in favor of parents might encourage people to enter Israel and obtain permanent residence through judicial educational decisions. While I’m sure some people seek permanent residence in Israel, is that a real fear? Would a person in the LGBTQ + community really enter into a relationship with an Israeli citizen, make a commitment to raise a child, and be financially responsible for obtaining permanent residence in Israel? If so, you have to somehow admire this kind of commitment. Seems like Israeli office supplies!
The state’s appeal denial last Monday was a victory for the couple and the LGBTQ + community in Israel. The rejection means that the first instance court order – the recognition of the parental status of the non-biological non-Israeli mother – is valid for the time being.
Israeli family law and assisted reproductive technology attorney Victoria Gelfand explained the decision: “It may surprise many people outside of Israel – just as it was for a long time unfathomable to our own community until this recent decision – that Israeli courts have raised the arguments of the Determined to be reasonable (!) By the state on some occasions and fail to intervene in the state’s refusal to recognize such “mixed” couples (in local jargon this means couples where one of the spouses is a foreigner with no permanent status in Israel) . “
Gelfand stated that in one of the previously rejected cases, the parents had unsuccessfully fought all the way to the Supreme Court. The married gay mixed couple had a child in the United States through surrogacy and only a few months before the non-Israeli spouse was eligible for Israeli citizenship. Due to the work of the Israeli spouse by the Israeli security forces relocating his task force to Europe, the family moved and their gradual process of obtaining citizenship for the non-Israeli parent ceased. All the courts that discussed her case “did not find sufficient grounds” to oppose the state’s arguments about the “negative effects on the child in the event of separation”. Gelfand stated that she and other legal experts to this day have wondered how the best interests of the child (as expected by the family court judges) might be weighted in favor of a “blind technical reflection on the basic instinct to protect” a child with heartbreak, when the father who had raised her for years was forced to become estranged from her in the event of separation or divorce because his parental rights were not recognized. “
Gelfand described that it was refreshing and comforting to read the court’s decision to separate immigration law from family law and find a way to make the latter over the former. Hopefully, the rejection of the state’s twisted best-interest arguments in this case shows that the happiness – and legal support – of LGBTQ + parents in Israel is changing for the better.
Ellen Trachman is the managing director of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-hosted the podcast I want to put a baby inside you. You can reach them at [email protected].