As It Happens

After just 1 twin is granted U.S. citizenship, family sues over same-sex discrimination

A pair of Canadian-born twins are at the centre of a California lawsuit that claims the U.S. State Department discriminates against same-sex couples.
Elad Dvash-Banks, left, and his partner, Andrew, pose for photos with their twin sons, Ethan, centre right, and Aiden in their apartment in Los Angeles on Tuesday. (Jae C. Hong/Associated Press)

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A pair of Canadian-born twins are at the centre of a California lawsuit that claims the U.S. State Department discriminates against same-sex couples.

Ethan and Aiden Dvash-Banks are 16 months old, conceived with donor eggs and born to the same surrogate mother in Toronto in September 2016.

They shared a womb and now they share almost everything — toys, a nursery, clothes and two loving fathers, Andrew and Elad Dvash-Banks.

But when the couple began planning to move to California, only Aiden was granted U.S. citizenship.

Aiden is genetically related to Andrew, who is American. Ethan is genetically related to Israeli-born Elad.

"They're both of our kids. We're raising them the exact same way. We were there from the beginning. We were in the delivery room and we saw them being born four minutes apart from each other," Elad told As It Happens host Carol Off. 

"We were the first people that held them. We saw their first breath and we heard them cry for the first time. So we look at our kids and we look at them equally."

Andrew and Elad were in the delivery room when their twin boys were born and were the first people to hold them. (Immigration Equality)

Andrew was studying in Israel in 2008 when he met Elad.

Because they couldn't legally marry at the time in either the U.S. or Israel, they moved to Canada, where they wed in 2010 and started a family six years later.

Both men used their sperm for the fertilization process, but had no plans to check the boys' DNA.

It didn't matter to them who, genetically, was whose son. 

"The genetics, or the biological connection, did not matter to us at all whatsoever. We didn't care about it. We didn't want to know about it. Because we didn't want the kids to start dealing with this," Elad said. 

'Creating a divide between our kids'

They say they always wanted to raise their family in the United States. The U.S. Supreme Court's rejection in 2013 of the Defence of Marriage Act, which barred the federal government from recognizing same-sex marriages, paved the way for that to happen.

Everything seemed fine until the couple brought their infants to the U.S. consulate in Toronto to apply for citizenship, which is regularly granted to the children of U.S. citizens born abroad. 

Andrew and Elad had everything in order — their marriage certificate and the boys' birth certificates, which have both parents' names on them. 

The toddler twins share almost everything — except for a toothbrush and U.S. citizenship. (Jae C. Hong/Associated Press)

But Elad said the woman at the counter demanded the couple prove their biological connection to their children.

That's when they discovered that only Aiden was genetically related to Andrew. 

The consulate worker told them it was her discretion to request the DNA test. Elad said she never would have asked a straight couple in the same situation.

"I think that what the State Department is doing here is discriminating against us because we're a same-sex couple and creating a divide between our kids," Elad said. 

2 lawsuits filed 

Ethan and Andrew are both named in the lawsuit — one of two filed Monday by an LGBT immigrant rights group that said the State Department is discriminating against same-sex binational couples by denying their children citizenship.

The cases filed in Los Angeles and Washington by Immigration Equality said the children of a U.S. citizen who marries abroad are entitled to U.S. citizenship at birth no matter where they are born and even if the other parent is a foreigner.

Ethan, left, became a plaintiff in a federal lawsuit against the U.S. State Department that seeks the same rights his brother has as a citizen. (Jae C. Hong/Associated Press)

The State Department said it doesn't comment on pending litigation, but pointed to guidance on its website that says there must be a biological connection to a U.S. citizen to become a citizen at birth.

The other case filed Monday involves two women, one from the U.S., and one from Italy, who met in New York, wed in London and each gave birth to a son. The State Department only granted citizenship to the boy whose biological mother was born and raised in the U.S.

Expired tourist visa 

The Dvash-Banks family has since moved to Los Angeles to be closer to Andrew's family.

Ethan came on a tourist visa that expired last month, and Elad has a green card from his marriage and intends to apply for citizenship.

Ethan, left, and his twin brother, Aiden, play in the living room of their apartment. Ethan is in the U.S. on an expired tourist visa. (Jae C. Hong/Associated Press)

"We are here to make things right," he said.

"We want to get Ethan his U.S. citizenship at birth and to help other couples that will confront this issue in the future when they want to bring their kids born abroad into the United States."

— With files from Associated Press