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Abstract

Cisgender same-sex male married couples, unlike cisgender opposite-sex married couples, will always require artificial reproductive technology (ART) for at least one of the spouses to attain biological parenthood. Due to legal and financial barriers to ART, many of these couples turn to international ART services to grow their families. In doing so, these families may face immigration battles when they apply for recognition of their child’s United States citizenship. For example, a prior State Department policy sparked three lawsuits after the State Department refused to recognize children as United States citizens from birth because the children were not biologically related to both of their cisgender same-sex male married parents. Because it is currently impossible for both parents in a cisgendered same-sex male marriage to be biologically related to their child, these families have been forced to litigate and challenge the constitutionality of the State Department’s policy. This Comment summarizes the relevant immigration law and the State Department policy that has resulted in this disparate treatment of married cisgendered same-sex parents and their children. In addition, this Comment outlines the three of the resulting lawsuits brought by such parents after their children were denied United States Citizenship—as well as the shortcoming that stem from the court’s failure to adjudicate the claims on the merits. Finally, this Comment provides a framework for how courts ought to adjudicate such claims and argues that analyzing the constitutional rights of married cisgendered same-sex male parents is needed to best protect similarly situated families. In doing so, this Comment posits that the Supreme Court’s broad sweeping and compelling reasoning in Bostock v. Clayton County might be used to provide further constitutional protections for these LGBTQIA individuals.

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