The IVF Cases That Broke Birthright Citizenship

The U.S. had to rethink its definition of parenthood, to account for children born abroad to American parents using egg and sperm donors or surrogates.

Ethan and Aiden Dvash-Banks are twin brothers—born just four minutes apart on the same September day in the same hospital room in Ontario, Canada. But shortly after their birth in 2016, the U.S. State Department decided that the two boys were very different in the eyes of American law: Aiden was a U.S. citizen but Ethan, the brother with whom he’d shared a womb, was not.

The reasoning, as it were, came down to how the boys had been conceived, via technology that a half-century-old immigration law could have in no way anticipated. The boys’ fathers, Andrew and Elad Dvash-Banks, used eggs from an anonymous donor, a gestational surrogate, and their own sperm. Aiden was genetically related to Andrew and Ethan to Elad, but each considered himself a father, in equal measure, to both boys. American officials didn’t see it that way, though: What mattered to them was that Andrew is an American citizen, which allowed him to pass his citizenship to his genetic son. But Elad is Israeli, so his genetic son was denied U.S. citizenship.

The Dvash-Bankses learned all of this just weeks before a planned move back to the United States when the boys were infants. (The couple had met in Israel and gotten married in Canada, in 2010, when gay marriage was not yet legal in the U.S.) They felt blindsided. “These are twin boys born four minutes apart,” Andrew Dvash-Banks reiterated to me on a recent phone call. “I can’t have my twins be treated differently.” But the U.S. sets policies that confer citizenship on some people but not others, which means hard lines have to be drawn somewhere. In this case, the line landed right in the middle of a new family.

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