Derek Mize and Jonathan Gregg stood outside on the brilliant Friday afternoon before Labor Day as their 2-year-old daughter, Simone, looked for “monsters” through a crack in the family’s garage door.
The monsters were, of course, imaginary and more cuddly than scary. Each time Simone claimed to spot one, she’d race back to her fathers to report what she’d seen.
“She’s at peak cuteness,” Mize said.
Credit: Jenni Girtman
Credit: Jenni Girtman
Like many parents, Mize and his husband, Gregg, are figuring out how to juggle work, chores and keeping their child occupied at home during a pandemic. To give Simone a sense of normalcy, they socialize with a couple of families in their Decatur neighborhood who’ve all agreed to observe strict COVID-19 precautions.
Because they worry about their daughter in the way first-time parents do, Mize and Gregg are hopeful that when she’s older she won’t remember the fear and limitations that suffused this period of her life.
They also don’t want the legal battle they’ve fought for the past two years to mark her in the future: not the court hearings held via video conference between her snack and nap times; not her fathers' anger when federal attorneys suggested it was absurd to worry about how the case might someday impact her professional aspirations.
Since 2018, the U.S. Department of State has insisted that Simone is not a legal U.S. citizen by birth because she was born in England and is not biologically related to both of her fathers. This, even though her parents are U.S. citizens and were married when she was conceived through assisted reproductive therapy, and despite the fact Gregg is her biological father.
Credit: Jenni Girtman
Credit: Jenni Girtman
Mize and Gregg are suing the State Department on the grounds the agency is breaking immigration law by denying Simone’s right to be declared a citizen by birth and by refusing to issue her a passport. The couple is also alleging the State Department has developed a policy regarding births abroad that are in effect discriminatory against certain same-sex couples.
At the end of August, a federal judge in Atlanta agreed with their argument and declared Simone a U.S. citizen by birth and ordered the State Department to immediately issue her a passport. The ruling, issued by U.S. District Judge Michael Brown, is the second such ruling this summer involving a married, same-sex couple whose child was born abroad via surrogacy, and at least the third such ruling since 2019. In the other cases, including the case of a Maryland couple whose daughter was born in Canada via a surrogate, the state department has appealed the decisions. It is expected to do so in the Mize-Gregg case.
“The State Department has been on the losing end of this on case after case after case,” said Susan Manning an attorney for both Mize and Gregg and the Maryland family. “The fact that the State Department persists after all of these losses is a problem.”
The department, which has 60 days to appeal the court’s decision, said through a spokesperson that it "is aware of the Court’s ruling and is reviewing the decision with the Department of Justice. We have no further comment at this time.”
Yet, the department has complied with court orders in the other cases which demanded passports be issued to the children. Gregg and Mize aren’t waiting for the State Department’s next move. They are applying for her passport now.
“Jonny and I made each other a promise when we were celebrating the decision that we’re just going to live in this moment for now,” Mize said. “We’ll deal with an appeal if it comes.”
Credit: Jenni Girtman
Credit: Jenni Girtman
“Disrespected a statutory right”
Mize was born in Mississippi and has always lived in the U.S. Gregg was born in England, but has citizenship through his mother, who was born and reared in New York. The men met in 2014, married the following year and Gregg moved permanently to the U.S. By 2017 they decided to start a family.
Simone was conceived using a donor egg and Gregg’s sperm. A friend of Gregg’s back in England carried Simone to term. Both men were in the delivery room when Simone was born in July 2018. Gregg cut her umbilical cord. Mize was first to hold her. The couple’s names are the only ones listed as parents on Simone’s birth certificate. The British government issued a parental order stating that Gregg and Mize were Simone’s legal parents.
That wasn’t enough for the State Department. It refused to recognize Simone as a birthright U.S. citizen or issue her a passport. Simone was brought home to Atlanta on a tourist’s visa.
“The federal government continues to refuse to recognize Simone as a U.S. citizen," said Omar Gonzalez-Pagan, an attorney for Lambda Legal which has represented Mize and Gregg. "They have disrespected a statutory right and benefit that is tied to marriage.”
Credit: Jenni Girtman
Credit: Jenni Girtman
The department’s case hinged on a set of immigration laws that confer citizenship on those born abroad. The laws have been around since at least 1952 and have been amended at least five times since the 1960s. Immigration statutes passed by Congress don’t mention biology as a way of establishing citizenship. But the department, at some point, began interpreting the law in a way that focuses on specific genetic connections between a child and their parents. While the department codified its interpretation of the law into its policy handbook, the interpretation was not vetted or approved by Congress.
“The result is that, under the State Department’s interpretation, a child cannot acquire citizenship…unless his or her parents are married U.S. citizens and he or she shares a biological relationship with both parents,” Brown wrote in the decision. “Of course, that interpretation leaves out many children born to U.S. citizens through assisted reproductive technology.”
The department’s interpretation sets more stringent residency requirements for parents such as Mize and Gregg, who are not both biologically connected to their child. Though Mize had always lived in the U.S., Gregg had lived in the U.S. less than five years before Simone’s birth. Federal statute requires a U.S. citizen born abroad to have lived in the U.S. five years before their newborn can be considered a citizen. Gregg was the donor but didn’t meet the residency requirement, so Simone couldn’t get citizenship through him.
Though her parents were married when she was born, Mize technically had no biological relationship to her. So, rather than treat her as the daughter of two married people, the State Department said she was born out of wedlock, the biological child of Gregg and the British egg donor and therefore not a citizen.
Brown’s ruling suggests the department’s policy of a biological relationship to both parents could have deeper legal problems, saying, “These cases raise serious doubts about the constitutionality of a biological parent-child requirement.”
Credit: Jenni Girtman
Credit: Jenni Girtman
“Great things”
When Gregg read the ruling, he walked upstairs to join his husband and daughter.
“'We need to sit down,'” Gregg remembers saying.
He began to read aloud. Then the men cried. Gregg said their daughter was confused until her dads explained they were “happy tears.”
Simone got to celebrate with an extra bottle of milk and a 30-minute delay in her afternoon nap, Mize said.
It is important to keep waging their fight, Gregg said, because birthright citizenship is key to achieving some major goals.
“There are very few people who would ever become president, but for most, if not all Americans, the aspiration for a child to have is to one day run for office,” Gregg said. “It’s something that motivates many, many Americans to do great things and we want them to do great things.”
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