The two envelopes, one for each twin brother, arrived in the mailbox on the same day in March of last year.
The larger parcel, for Aiden Dvash-Banks, contained a new U.S. passport and a letter congratulating the boy on his American citizenship. A smaller, flimsier envelope came for Ethan Dvash-Banks. Inside, a letter stated that his citizenship application had been denied.
The boys were carried in the same womb and born 16 months ago in Canada, minutes apart. But now, only one of them is in the U.S. legally.
The disparity is at the crux of a lawsuit filed last week against the State Department in which the twins' parents, a married binational gay couple, allege that the government's policy of granting birthright citizenship to children born abroad based on blood relation discriminates against LGBT couples.
Aiden and Ethan were conceived using an anonymous donor's eggs and the sperm of their fathers, Andrew and Elad Dvash-Banks. The twins were carried and delivered by a surrogate. Aiden shares DNA with Andrew, a Santa Monica native, while Ethan is biologically related to Elad, who was born and raised in Israel.
In Ethan's denial letter, addressed to Andrew, a U.S. Consulate official said the Immigration and Nationality Act requires "a blood relationship between a child and the U.S. citizen parent in order for the parent to transmit U.S. citizenship."
The boy's "claim to U.S. citizenship has not been satisfactorily established, as you are not his biological father," the letter said.
The couple were devastated — and livid.
Credit: Al Seib
Credit: Al Seib
"As a parent, my No. 1 job is to protect my sons," Andrew Dvash-Banks, 36, said in an interview. "I can't allow anyone to treat them differently. That is what my government is doing."
In their fathers' eyes, the boys are the same. They both grimace at the sight of broccoli. Both love hide-and-seek and Elmo, the furry red Muppet. But without birthright citizenship, the couple said, Ethan is undeniably different.
For example, "If he's not a U.S. citizen at birth, he can't become a U.S. president," said Elad Dvash-Banks, 32. "A child should not start his life with, 'You can't do this.' "
The couple never intended to disclose their biological connections to their sons — or to anyone else. They said it wasn't necessary, and not even their parents or grandparents asked.
"The fact that the State Department has taken it upon themselves to make it their business is wrong," Andrew Dvash-Banks said. The lawsuit argues that the provisions cited by the State Department apply only to children born outside of marriage, and therefore shouldn't apply to them.
A State Department official declined to comment on pending litigation.
The family's case exposes the unique immigration challenges facing binational LGBT couples, which number about 36,000 in the U.S., said Jackie Yodashkin, public affairs director for Immigration Equality.
"That means there are a lot of people who have or will be starting families soon," Yodashkin said. "If the goal is to keep families together, then why would you ever create a situation where you have an undocumented baby and a U.S. citizen twin brother?"
Legal experts said the statutes were written without contemplating same-sex marriages.
"Fundamentally, we're dealing with very conservative, traditional notions of family when these statutes were written," said Jean Reisz, a professor at Gould School of Law at the University of Southern California, adding that she was surprised by the State Department's position.
But Nancy Polikoff, a visiting professor at School of Law at the University of California, Los Angeles, said straight couples who use assisted reproduction abroad run into similar problems.
"The definition of parents that's being used has not caught up to the reality of parentage today, which is that lots of people are recognized as legal parents even though they aren't biological parents and they haven't adopted the child," she said.
Andrew and Elad Dvash-Banks met in 2008 at a holiday party at Tel Aviv University in Israel, where Andrew was working toward a master's degree in Middle Eastern studies.
They fell in love and, two years later, were married. They intended to settle in California, where Andrew Dvash-Banks has four siblings, and 14 nieces and nephews. But at the time, same-sex marriages were not allowed in California and not recognized by the federal government.
That meant Elad Dvash-Banks couldn't obtain lawful permanent residency in the U.S. through his marriage. So his partner had a choice: He could either start his marriage away from his family, or away from his husband.
"Obviously I chose to live with the man I fell in love with," Andrew Dvash-Banks said. The couple settled in Canada, where Andrew has dual citizenship.
The couple were elated in 2013, when the U.S. Supreme Court struck down part of a federal law that denied benefits to legally married gay couples. Elad applied for a green card soon after.
A few months after the twins were born, the couple visited the U.S. Consulate in Toronto to get their sons U.S. passports. They carried their marriage certificate, matching birth certificates, a check, diapers and their two newborns.
After hours of waiting, an official called them to the window. There, they were asked a series of detailed questions about the boys' conception. They felt humiliated, but answered.
The official said Andrew Dvash-Banks would have to undergo a DNA test to prove a biological link to each twin. Without that, neither child would qualify.
"If we were a hetero couple," Elad Dvash-Banks said, "she would never ask that. She would never ask that because she would assume we are husband and wife."
Andrew Dvash-Banks wept at the window. Onlookers watched in silence.
"We were hit with a ton of bricks," he said.
